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Full text of "North Carolina Register v.10 no. 4 (5/15/1995)"

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NORTH CAROLINA 

REGISTER 



VOLUME 10 • ISSUE 4 • Pages 228 - 296 
May 15, 1995 



IN THIS ISSUE 

Agriculture 

Certified Public Accountant Examiners 

Chiropractic Examiners 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Nursing Home Administrators, Board of 

Real Estate Commission 

Refrigeration Examiners 

State Personnel 

Transportation 

RRC Objections 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 




INFORMATION ABOIT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and twenty dollars ($120.00) for 24 
issues. Individual issues may be purchased for ten dollars 
($10.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, PO Drawer 
27447, Raleigh, NC 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2 A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may 
request a hearing); a statement of procedure for public comments; 
the text of the proposed rule or the statement of subject matter; the 
reason for the proposed action: a reference to the statutory 
authority for the action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative 
Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 



agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 

TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions 
in G.S. 150B-21.1. If the Codifier determines that the findings 
meet the criteria in G.S. 150B-21.1. the rule is entered into the 
NCAC. If the Codifier determines that the findings do not meet 
the criteria, the rule is returned to the agency. The agency may 
supplement its findings and resubmit the temporary rule for an 
additional review or the agency may respond that it will remain 
with its initial position. The Codifier, thereafter, will enter the 
rule into the NCAC. A temporary rule becomes effective either 
when the Codifier of Rules enters the rule in the Code or on the 
sixth business day after the agency resubmits the rule without 
change. The temporary rule is in effect for the period specified in 
the rule or 180 days, whichever is less. An agency adopting a 
temporary rule must begin rule-making procedures on the 
permanent rule at the same time the temporary rule is filed with 
the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 40 occupational licensing boards. Compilation and 
publication of the NCAC is mandated by G.S. 150B-21 .18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 
The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents ($2.50) for 10 pages or less, 
plus fifteen cents ($0.15) per each additional page. 
Requests for pages of rules or volumes of the NCAC 
should be directed to the Office of Administrative 
Hearings. 

(2) The full publication and supplement service is printed 
and distributed by Barclays Law Publishers. It is 
available in hardcopy, CD-ROM and diskette format. 
For subscription information, call 1-800-888-3600. 

CITATION TO THE NORTH CAROLINA REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 10:01 NCR 1-67, April 3, 1995 refers to 
Volume 10, Issue 1, pages 1 through 67 of the North Carolina 
Register issued on April 3, 1995. 



FOR INFORMATION CONTACT: Office of Administrative Hearings, ATTN: Rules Division, PO Drawer 27447. Raleigh, 
NC 27611-7447. (919) 733-2678, FAX (919) 733-3462. 



NORTH CAROLINA 



IN THIS ISSUE 




Volume 1 O, Issue 4 
Pages 228 - 296 



May 15, 1995 



This issue contains documents officially 
filed through May 1, 1995. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 



I. PROPOSED RULES 
Agriculture 

Structural Pest Control Division 228 

Environment, Health, and Natural Resources 

Environmental Management 246 - 249 

Wildlife Resources 249-254 

Human Resources 
Medical Assistance 228 - 246 

Insurance 
Agent Services Division 246 

Licensing Boards 

Certified Public Accountant Examiners 255 - 261 

Chiropractic Examiners 261 - 262 

Nursing Home Administrators, Board of 262 

Real Estate Commission 263 - 264 

Refrigeration Examiners, Board of 264 

State Personnel 
State Personnel Commission 264 - 271 

Transportation 
Highways, Division of 254 - 255 

II. LIST OF RULES CODIFIED 272 - 275 

III. RRC OBJECTIONS 276 - 279 



IV. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 280 - 286 

Text of Selected Decisions 
94 OSP 0937 287 - 291 

V. CUMULATIVE INDEX 293-296 



NORTH CAROLINA REGISTER 

Publication Schedule 
(November 1994 - September 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 
for Fil- 
ing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


1 1 /07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 


9:21 


02/01/95 


01/10/95 


01/18/95 


02/16/95 


03/03/95 


03/20/95 


05/01/95 


9:22 


02/15/95 


01/25/95 


02/01/95 


03/02/95 


03/17/95 


03/20/95 


05/01/95 


9:23 


03/01/95 


02/08/95 


02/15/95 


03/16/95 


03/31/95 


04/20/95 


06/01/95 


9:24 


03/15/95 


02/22/95 


03/01/95 


03/30/95 


04/17/95 


04/20/95 


06/01/95 


10:1 


04/03/95 


03/13/95 


03/20/95 


04/18/95 


05/03/95 


05/22/95 


07/01/95 


10:2 


04/17/95 


03/24/95 


03/31/95 


05/02/95 


05/17/95 


05/22/95 


07/01/95 


10:3 


05/01/95 


04/07/95 


04/17/95 


05/16/95 


05/31/95 


06/20/95 


08/01/95 


10:4 


05/15/95 


04/24/95 


05/01/95 


05/30/95 


06/14/95 


06/20/95 


08/01/95 


10:5 


06/01/95 


05/10/95 


05/17/95 


06/16/95 


07/03/95 


07/20/95 


09/01/95 


10:6 


06/15/95 


05/24/95 


06/01/95 


06/30/95 


07/17/95 


07/20/95 


09/01/95 


10:7 


07/03/95 


06/12/95 


06/19/95 


07/18/95 


08/02/95 


08/21/95 


10/01/95 


10:8 


07/14/95 


06/22/95 


06/29/95 


07/31/95 


08/14/95 


08/21/95 


10/01/95 


10:9 


08/01/95 


07/11/95 


07/18/95 


08/16/95 


08/31/95 


09/20/95 


11/01/95 


10:10 


08/15/95 


07/25/95 


08/01/95 


08/30/95 


09/14/95 


09/20/95 


11/01/95 


10:11 


09/01/95 


08/11/95 


08/18/95 


09/18/95 


10/02/95 


10/20/95 


12/01/95 


10:12 


09/15/95 


08/24/95 


08/31/95 


10/02/95 


10/16/95 


10/20/95 


12/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 XCAC 2B .0103 and the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 

of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 

** The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, 

that the Rules Review Commission approves the rule at the next calendar month meeting after submission, ami 

that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st day of the next calendar 

month. 



Revised 10/94 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C Structural Pest Control 
Committee intends to amend rule cited as 2 NCAC 34 . 0904. 

Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 10:00 a.m. on June 
8, 1995 at the Board Room (Room 357), Agriculture 
Building, 2 W. Edenton Street, Raleigh, NC 27601. 



Reason for Proposed Action: 

unregistered pesticides. 



To prohibit the use of 



Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing or prior to 
the hearing by mail, addressed to the Chairman of the North 
Carolina Structural Pest Control Committee, P.O. Box 
27647, Raleigh, NC 27611. This proposed rule was re- 
quested by rulemaking petition submitted to and approved by 
the Structural Pest Control Committee. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state finds. 

CHAPTER 34 - STRUCTURAL PEST 
CONTROL DIVISION 



SECTION .0900 



DUTIES AND RESPONSIBILITIES 
OF LICENSEE 



.0904 PROHIBITED ACTS 

(a) No reference shall be made by any certified applica- 
tor, licensee, business establishment or business entity in 
any form of advertising that would indicate approval, 
endorsement or recommendation by the committee, or by 
any agency of the federal government or North Carolina 
State, county, or city government. 

(b) The use of a structural pest control license(s), certi- 
fied applicator's identification card(s), registered techni- 
cian's identification card(s) or licensee identification card(s) 
for any purpose other than identification is prohibited. 

(c) In solicitation of structural pest control business, no 
licensee or his employees shall claim that inspections or 
treatments are required, authorized, or endorsed by any 
agency of the federal government or North Carolina State, 
county, or city government unless said agency states that an 
inspection and/or treatment is required for a specific 
structure. 

(d) No licensee shall advertise, in any way or manner, as 
a contractor for structural pest control services, in any 
phase(s) of work for which he does not hold a valid li- 
censees) as provided for under G.S. 106-65. 25(a), unless 
said licensee shall hold a valid certified applicator's identifi- 
cation card or registered technician's identification card, as 



provided for under G.S. 106-65.31, as an employee of a 
person who does hold a valid state license(s) covering 
phases of structural pest control work advertised. 

(e) The impersonation of any North Carolina State, 
county, or city inspector or any other governmental official 
is prohibited. 

(0 No licensee, certified applicator or registered techni- 
cian's identification card holder shall advertise or hold 
himself out in any mariner in connection with the practice of 
structural pest control as an entomologist, plant pathologist, 
horticulturist, public health engineer, sanitarian, and the 
like, unless such person shall be qualified in such field(s) by 
required professional and educational standards for the title 
used. 

(g) No certified applicator, licensee or his employees 
shall represent to any property owner or his authorized 
agent or occupant of any structure that any specific pest is 
infesting said property, structure, or surrounding areas 
thereof, unless strongly supporting visible evidence of such 
infestation exists. 

(h) No certified applicator or licensee or their employees 
shall authorize, direct, assist, or aid in the publication, 
advertisement, distribution, or circulation of any material by 
false statement or representation concerning the licensee's 
structural pest control business or business of the company 
with which he is employed. 

(i) No certified applicator or licensee or their employees 
shall advertise or contract in a company name style contra- 
dictory to that shown on the certified applicator's identifica- 
tion card or license certificate. 

(j) No certified applicator shall use any name style on his 
certified applicator's identification which contains the words 
"exterminating", "pest control" or any other words which 
imply that he provides pest control services for a valuable 
consideration unless he is a licensee or a duly authorized 
agent or employee of a licensee. 

(k) No licensee issued an inactive license shall engage in 
any phase of structural pest control. 

(1) No certified applicator or licensee or their employees 
shall apply any unregistered substance, that consists of or 
contains an active ingredient that can be used as a pesticide 
or to manufacture a pesticide, in conjunction with, any 
registered pesticide, before, during, or after the registered 
pesticide is applied for the control of household pests. 

Statutory Authority G.S. 106-65.29. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical Assistance 
intends to amend rules cited as 10 NCAC 26H .0302, .0304 
- .0305, .0308- .0309. 

Proposed Effective Date: August 1, 1995. 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



228 



PROPOSED RULES 



A Public Hearing will be conducted at 1:30 p.m. on June 
14, 1995 at the North Carolina Division of Medical Assis- 
tance, 1985 U instead Drive, Room 132, Raleigh, NC 

Reason for Proposed Action: The proposed changes to the 
ICF-MR reimbursement plan are the result of an indepth 
study of the ICF-MR industry by the Division of Medical 
Assistance. The consulting firm of Myers and Stauffer 
studied the industry under contract #MA-075-93 and recom- 
mended an acuity based reimbursement model. The ICF-MR 
Management Team (comprised of representatives from 
affected state agencies) and the ICF-MR providers evaluated 
the Mxers and Stauffer study and formulated the proposed 
plan. The proposed plan has been endorsed by the three 
ICF-MR provider associations. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by June 14, 1995 to: 
Division of Medical Assistance, 1985 Umstead Drive, 
Raleigh, NC 27603, ATTN: Portia Rochelle, APA Coordina- 
tor. Oral comments may be presented at the hearing. In 
addition, a fiscal note is available upon written request from 
the same address. 

Fiscal Note: These Rules affect the expenditure or distribu- 
tion of State funds subject to the Executive Budget Act, 
Article 1 of Chapter 143. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0300 - ICF-MR PROSPECTIVE RATE 
PLAN 

.0302 REPORTING REQUIREMENTS 

(a) Financial reports shall include the following: 

(1) Budget reports: Each provider shall include 
appropriate budget information in its application 
for an initial rate for a new facility: 

(A) The budget shall reflect the projected annual 
operating results of each of the two years 
subsequent to the commencement of operating 
said facility. 

(B) The budget information used to support the 
Certificate of Need award shall be provided to 
the Division of Medical Assistance on or 
before 30 days prior to the enrollment of said 
facility by the Medicaid program. 

(C) Budgets are not deemed to be appropriately 
filed unless they are properly prepared, in 
accordance to rules established by the Division 
of Medical Assistance. 

(2) Cost reports: Each facility that receives pay- 
ments from the North Carolina Medicaid Pro- 
gram shall prepare and submit a separate annual 
cost report of its costs, a working trial balance 



related to reimbursement, and other financial 
information as requested by the Division of 
Medical Assistance. Providers that have an 
approved combined uniform rate in accordance 
with Rule .0304 Paragraph (n) of this reimburse- 
ment plan shall file a combined cost report that 
is supported by the individual facility cost re- 
ports. For these providers, the combined cost 
report shall be filed with the Division of Medical 
Assistance Audit Section while the individual 
facility cost reports should be filed with the 
Division of Medical Assistance Rate Setting 
Section. 

(A) The cost report shall cover a 12 month period, 
from July 1 to the following June 30, unless 
another time frame is specified by the Division 
of Medical Assistance. 

(B) The cost report shall be submitted to the state 
on or before the September 30 that immedi- 
ately follows the June 30 year end. The 
Division of Medical Assistance may grant an 
extension of time of up to 30 days for filing 
the cost report, upon showing of just cause in 
writing by the provider. 

(C) For new facilities a cost report shall be sub- 
mitted for the period beginning with the date 
of certification and ending on the following 
June 30. 

(D) The cost report shall be submitted on the 
medium and in the format based on the Chart 
of Accounts specified by the Division of 
Medical Assistance. All costs shall be shown 
on the cost reports in accordance with rules 
established by the Division of Medical Assis- 
tance. A cost report that does not meet the 
requirements of the Division of Medical Assis- 
tance is deemed not to be filed. 

(E) Currently filed cost reports shall reflect the 
decisions and judgments expressed by the 
Division of Medical Assistance auditors on 
previous cost reports. 

(F) All related organizations shall file a Medicaid 
cost statement identifying their costs, adjust- 
ments to costs, and allocation of costs along 
with the ICF-MR facility's cost report. A 
home office, or parent company, shall be 
recognized as a related organization. 
Auditable records to support these costs shall 
be made available to the Division of Medical 
Assistance and its designated contract auditors. 
Undocumented costs shall be disallowed for 
Medicaid reimbursement. 

(G) Cost reports shall clearly identify related party 
transactions. Failure to do so may result in 
the related cost being disallowed for Medicaid 
reimbursement purposes. 

(H) A combined cost report may only be filed for 



229 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



facilities that use the same cost settlement 
methodology and have a uniform rate, as 
approved by the Division of Medical Assis- 
tance. 

(b) Additional information reporting requirements for 
facilities shall include, but not be limited to, the following: 

(1) Each facility providing day treatment services 
shall be required to submit, in conjunction with 
the cost report, a separate report itemizing the 
actual expense attributable to the provision of 
day treatment services and the actual number of 
client days associated with said expense. 

(2) Each provider operating a facility, upon the 
request of the Division of Medical Assistance, 
shall submit statistical data and other information 
relevant to the administration and operation of 
said facility. Such reports shall be submitted 
within the time frames authorized in the request. 

(3) Each provider that issues an annual report to its 
shareholders shall file a copy of said report with 
the Division of Medical Assistance. Said report 
shall be filed within 30 days of its issuance to 
the shareholders. 

(4) Each provider that has a compensatory stock 
option plan shall file a copy of said plan with the 
Division of Medical Assistance, within 30 days 
of its implementation. 

(5) A provider shall file an information report with 
the Division of Medical Assistance within 30 
days of receiving notification from either the 
North Carolina Department of Revenue or the 
Internal Revenue Service that items, previously 
reported and allowed on a cost report, have been 
disallowed on the provider's associated tax 
return. 

(c) Requirements for certification of financial reports. 
(1) Each provider that operates a facility shall 

complete the required financial reports in accor- 
dance with the following rules and in the order 
of priority stated: 

(A) Cost shall be represented in accordance with 
the specific provisions of the plan as set forth 
in this Rule. 

(B) Costs shall be reported in conformance with 
the Medicare Provider Reimbursement Man- 
ual, HCFA 15, which is h ereby incorporated 
by reference with including subsequent 
changes amendments and editions, amend 
ment s pur s uant to G.S. 150B 14(a)(2)(C). 
Said manual is commonly referred to as the 
HIM- 15 manual and is available for inspection 
at the Division of Medical Assistance, 1985 
Umstead Drive, Raleigh, North Carolina 
27603. Copies may be obtained from the 
Superintendent of Documents, U.S. Govern- 
ment Printing Office, Washington, DC 20402- 
9325 at a cost of three hundred fifty seven 



dollars ($357.00). Tel: (202) 783-3238. 

(C) Costs shall be reported in conformance with 
generally accepted accounting principles. 

(D) Governmental institutions have the option of 
using the accrual or cash method of account- 
ing. 

(2) Cost reports prepared for facilities shall be 
certified for their compliance with Subparagraph 
(c)(1) of this Rule by the provider's executive 
director or designated officer. 

(3) Budget reports prepared for facilities shall be 
certified for their fair representation of antici- 
pated disbursements and receipts related to the 
Medicaid ICF-MR program by the provider's 
executive director or designated officer. 

(d) Requirements for the revision of financial reports shall 
include the following: 



(1) 



(2) 



(3) 



In the event the Division of Medical Assistance 
determines a cost report does not meet the 
requirement of the Division of Medical Assis- 
tance during a detailed review, the provider shall 
have 30 days from the date of said notification 
to submit a revised cost report or additional 
data. Such revised data or report shall be 
certified by the provider's executive director or 
designated officer. 

In the event that the provider discovers that a 
report submitted to the Division of Medical 
Assistance is incomplete, inaccurate or incorrect 
the provider shall immediately notify the Divi- 
sion of Medical Assistance that such error(s) 
exist. The provider shall have 30 days from the 
date of said notification to submit a revised 
report or additional data. Such data or report 
shall meet the certification requirements of the 
report being corrected. 

Failure to file the corrected reports on a timely 
basis in accordance to either Subparagraph (d)(1) 
or (2) of this Rule shall result in the related 
report being considered not filed and subject to 
the provisions under this Rule related to the 
failure to file said reports. However, the Divi- 
sion of Medical Assistance may grant an exten- 
sion of time of up to 30 days to file said cor- 
rected reports, upon the showing of just cause 
by the provider in writing. 



Authority G.S. W8A-25(b); 108A-54; 108A-55; 42 C.F.R. 
447, Subpart C. 

.0304 RATE SETTING METHODS FOR NON-STATE 
FACILITIES 

— (ft) — A prospective - rate is determined annually for each 
non state facility to b e e ff e ctiv e for dat e s — of se rvic e for a 
12 month rat e p e riod beginning e ach July 1. — Th e prospec 
tivo rate shall be paid to the provider for every Medicaid 
eligible day during the applicable rate year. — The prospective 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



230 



PROPOSED RULES 



rate may be determined after the effective date and paid 
retroactively to that dat e . — Each non stat e facility, e xcept 
those facilities whor e Paragraph (v) of thio Rule appli e s, 
shall be classified into one of the following groups: 
f4-) Group 1 Facilities with six beds or loss and 

provid e r owns l e ss than 150 total b e ds in said 

faciliti e s. 



-m- 



-m- 



Group 2 — Facilities with six beds or loos and 
provider own s 150 or more beds in said facili 

Group 3 — Faciliti e s with s e v e n to 15 b e ds. 






Group 1 — Facilities with 16 to 40 beds. 
Group 5 — Facilities with over 4 beds. 



-m- 



Faoiliti e s with m e dioally — fragil e 



Group 6 

clients. — For rate r e imbursem e nt purpos e s und e r 
this plan, medically fragile clients are defined as 
any individual with complex medical problems 
who have chronic d e bilitating dis e as e s or condi 
tions of on e or mor e physiological or organ 
systems which generally make them dependent 
upon — 2 4 hour — a — day — mcdical/nursing/health 
supervision or int e rv e ntion, 
(b) Faciliti e s shall b e reclassifi e d into appropriat e groups 
as defined in Paragraph (a) of this Rulo when necessary. 

(+) When a facility is reclassified, the rate will be 

adjusted r e troactiv e ly back to th e dat e of th e 

event that caus e d — th e r e cla ss ification. Thio 

adjustment shall give full consideration to any 
reclassification based on the change in facts or 
circumstances during th e y e ar. — Ov e rpaym e nts 
related to this retroactiv e rat e adjustm e nt shall 
be repaid to the Medicaid program. — Underpay 
ments related to this retroactive rate adjustment 
shall b e paid to th e provid e r. 

^3-) Th e provid e r shall bo giv e n th e opportunity to 

appoal the merits of the reclassification of any 
facility, prior to any decision by the Division of 
Medical Assistanc e . 

f3-) The provid e r shall b e notifi e d in writing 30 days 

before the implementation of new rates resulting 
from the reclassification of any facility. 

(-4-) Th e provid e rs and — the — Division of M e dical 

Asoiotanoe ohall mak e e v e ry r e asonabl e e ffort to 
ensure that each and every facility i s properly 
classified for rate setting purposes. 
— fe-) — Rates ar e d e riv e d from e ith e r filed, desk or field 
audit e d cost r e ports for th e 1991 1992 ba se y e ar p e riod. 
The rate setting impact of a facility filing a les s than full 
year's cost report in the base year shall be fully considered 
by th e Division of M e dical Assistance in determining th e 
appropriate per di e m rat e . 

— (-d-) — Rates developed from filed co s t reports may be 
retroactively adjusted if there is found to exist more than a 
two p e rc e nt diff e r e nc e b e tw ee n th e filed per diem coot and 
e ither the desk audit e d or fi e ld audit e d p e r di e m cost for th e 
same reporting period. — Rates developed from desk audited 
co s t report s may bo retroactively adjusted if there is found 



to oxi3t moro than a two — percent difference between the 
dook audit e d p e r di e m oost and the field audited p e r diom 
oost for th e sam e reporting p e riod. — Th e rat e adjustment 
may be made after written notification to the provider 30 
days prior to implementation of the rate adjustment. 

( e ) Each pro s p e ctiv e rat e consists of the sum of the throo 
compon e nts as follows: 

(-+-» Property ownership and u se (POU): 

(£} Administrative and General and Operation and 

Maint e nanc e of Plant (AG/OMP); 

f3-) Dir e ct car e . 

— (f) The POL) rate is based on the Medicaid coot reflected 
in the POU cost eentor as shown on the 1992 cost report 
format, e xc e pt for POU costs r e lated to day programs are 
tr e at e d lik e all oth e r day program costs and ther e for e ar e 
con s idered to be direct care costs. 

(g) The AG/OMP rate is based on the sum of the Medic 
aid oost r e fl e ct e d in th e AG, hous e k e eping and OMP coot 
c e nt e rs as shown on the 1992 oost r e port format, exc e pt for 
the following: 

(-B Labor related OMP costs arc considered to be 

direct car e costs. — Non labor r e lat e d OMP costs, 
as r e fl e ct e d in th e 1992 oost r e port format, ar e 
included as OMP costo for determining the 
AG/OMP component of a facility' s rate. 

f24 Non labor r e lat e d housekeeping costs, as re 

fleet e d in th e — 1992 oost r e port — format, — a*e 
included as OMP costs for determining the 
AG/OMP component of a facility's rate. — Labor 
related houseke e ping costs ar e considered to bo 
dir e ct oar e costs. 

f3-) OMP and housekeeping costs related to day 

programs are treated like all other day program 

coots and ther e for e ar e consid e r e d to b e dir e ct 

oar e costs. 

(h) The direct care rate is based on the Medicaid cost as 

shown on the 1992 co s t report format, less the costs related 

to POU and AG/OMP disouoood in Paragraphs (f) and (g) 

of this Rul e . 

(i) The facility' s total per diem rate shall be limited to the 
lesser of the actual amount incurred in the base year or the 
sum of th e fifti e th p e rc e ntil e of e ach oost cat e gory, achi e v e d 
by th e r e lat e d facility group in th e bas e year. 

(j) Exception s to the fiftieth peroontilo cost category cap 
included in Paragraph (i) arc, as follows: 

(4-) Facility Group 2 — Th e p e r di e m amounts for 

e ach of th e thr ee oost cat e gori e s are to b e liiri ' 
ited to reasonable amounts as determined by the 
Division of Medical Assistance. 

(5-) Facility Group 3 — POU co o t s ar e limit e d to an 

amount which is d e t e rmin e d to b e r e asonable by 
the Division of Medical A s sistance. — The rate 
for a facility in this group is the lower of the 
facility's actual costs during th e ba s e y e ar, or 
th e sum of th e POU, as d e t e rmin e d — in this 
Subparagraph. — and — the AG/OMP and — direct 
costs, as determined in accordance with Para 



231 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



graph (i) of thia Rulo. 

£3) Faoility Group <\ — Coat oat e gorieo ar e limit e d to 

tho coot inourrod in tho bas e y e ar by the facility 
in thia category determined to represent fair and 
reasonable coots for thia group as determined by 
tho Division of M e dioal Aooiotano e , 

(4) Faoility Group 5 — Cost cat e gori e s ar e limit e d to 

tho weighted average cost incurred by the facili 
tios in this group during tho base year, 
(k) If, during a ooot reporting p e riod, allowable costs are 
loas than prospective paym e nts that ar e not bas e d on an 
appeal, then a provider may retain one half of said diffor 
once, up to an amount of five dollars ($5.00) per patient 
4ay-. — The balanoe of un e xp e nded paym e nts shall b e r e 
fund e d to th e Division of M e dioal Assistanc e . — If allowabl e 



annual change in tho implicit price deflator 
for th e Gross National Product as provid e d 
by th e North Carolina Offic e of Stat e 
Budgot and Management, 
(iii) Fixed. — No price level adjustment shall be 



mad e for this oat e gory. 

(-D) — The — w e ights — comput e d — in — Subparagraph 

(1)(1)(B) of this Rulo shall be multiplied times 
tho rates computed in Paragraph (c) of this 
Rul e . Th e s e w e ight e d rates shall bo add e d to 
obtain th e composit e inflation rate, 
(m) Tho initial rate for facilities that havo boon awarded 
a Cortifioato of Nood on or after January 1, 1993 is ostab 
lish e d at th e low e r of the fair and r e asonabl e coots in th e 
provid e r's budg e t, as d e termin e d by th e Division of M e dical 
costs aro loss than prospective payments that aro based on Assistance, or tho projected costs in the provider's Cortifi 
an appeal, then all of tho unexpended payments during tho oato of Need application adjusted from the projected opening 
year of tho appeal ohall be refunded to th e Division of dat e in th e C e rtificat e of Need application to the curr e nt rat e 

p e riod in which th e faoility is cortifi e d bas e d on th e price 
level change methodology sot forth in Paragraph (1) of this 
Rulo, or tho average current rate paid to facilitie s in the 
appropriat e faoility group as determined by Division of 
M e dioal Assistanc e , or th e rat e curr e ntly paid to th e owning 
provider, if tho provider currently has an — approv e d chain 
rato for facilities in tho related facility category. — The rate 
may bo robaood to th e actual oost inourrod in tho first full 



Medioal Assistanc e . — For y e ars subs e qu e nt to th e y e ar of 

appeal, a provider may retain one half the unexpended 

payment, up to an amount of five dollars ($5.00) per patient 

day, if tho app e al rate is at or b e low th e oost oap e stablish e d 

for th e applioabl e faoility group. — How e v e r, if th e app e al 

rate is above tho applicable cost cap in subsequent years, 

then all of tho unoxpondod payments shall bo returned to tho 

Division of Modioal — Assistanc e . Cost in oxooss of a 

faoility's total prosp e ctiv e paym e nt rato are not roimbur s year of normal op e rations in th e y e ar aft e r an audit of the 

able. first year of normal operation is completed. 

— (-B For facilities that have been awarded a Certifi 

cat e of Need b e for e January 1, 1993, th o initial 
rat e is e stablish e d at th e lower of th e fair and 
reasonable costs in tho provider's budget, as 
determined by tho Division of Medical A ss is 
tanc e , or th e proj e cted oosts in th e provid e r's 
C e rtificate of Nood application adjust e d from th e 
projected opening date in tho Certificate of Need 
application to tho current rate period in which 
th e faoility i s c e rtifi e d bas e d on the price level 
chang e m e thodology s e t forth in Paragraph (1) of 
this Rule, or the maximum rate paid to facilities 
in tho appropriate facility group, or the rate 
curr e ntly paid to th e owning provider, if th e 
provid e r ha3 an approv e d chain rat e for fac i lities 
in th e related facility category. — Tho rate may be 
rebasod to the actual cost incurred in the first 
full y e ar of normal op e rations in th e y e ar aft e r 
an audit of th e fir s t y e ar of norma l op e ration i s 
completed . 



— (+) — To oomputo each facility' s current prospective rato, 
the total rate e stablish e d by Paragraphs (a) through (j) of 
this Rulo is adjusted for prio e l e v e l chang e s sino e tho base 
yoar. — No inflation factor for any provider shall oxcood tho 
maximum amount permitted for that provider by federal or 
stat e law and r e gulations. 
(4^ Prio e l e v e l — adjustm e nt — factor s ar e oomput e d 

using aggregate base year costs in tho following 

manner: 
(-A-) — Costs shall b e s e parat e d into thr ee groups: 



-dh 



Labor, 



-ft*) Non labor, 

-fm) Fixed. 



-f&) — Th e r e lativ e w e ight of e aoh oost group is 
calculat e d to th e s e oond d e cimal — point by 
dividing tho total costs of each group (labor, 
nonlabor, and fixed) by tho total industry cost. 



-(G)- 



Prio o lev e l adju s tm e nt faotoro for each oost 
group o hall b e es tabli s h e d as follows: 

-fi) Labor. — The percentage change for labor 

oo s t s is ba s ed on tho projected average 
hourly wag e of North Carolina s e rvic e 
work e rs. — Salari e s for all per s onnel shall 
bo limited to level s of oomparablo posi 
tion s in state owned facilities or levels 
sp e cifi e d by th e Division of M e dioal Assis 
tanc e . 

-fit) Nonlabor. Tho percentage change — fef 

nonlabor costs is based on the projected 



-(3} In tho event of a change in ownership, the new 

own e r r e c e iv e s no more than th e rat e of paym e nt 
assign e d to th e pr e vious own e r. 

-(3) Except in cases wherein tho provider has failed 

to file supporting information as requested by 
th e Division of M e dioal Assistanc e , initial rat es 
s hall b e grant e d to now e nroll e d — faciliti e s no 
later than 60 days from the provider's filing of 
properly prepared budgets and supporting infor 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



232 



PROPOSED RULES 



-W 



mation. 

Th e initial rot e for a n e w facility shall b e appli 



cable to all dat e o of s e rvic e oomm e noing with 
the date the facility is certificated by the Medio 
aid Program. 
— (n) A provid e r with more than one facility in a particular 
facility group, e xcept Group 5, may b e allow e d to r e oov e r 
costs through a combined uniform rato for all facilities in a 
particular facility group. 

(4-) Combined uniform rat e s for chain provid e rs 

within a particular facility group may b e ap 
proved upon written request from the provider 
and after review by the Division of Medical 

f2-) An approv e d oombinod uniform rat e must b e 

applied to all facilities owned by the chain 
provider in a particular facility group. 

(3} In determining a combined uniform rat e for a 

particular facility group, th e w e ight e d av e rag e of 
each facility's rate, calculated in accordance to 
all other provisions of this Rule, shall bo usod. 



-W- 



A combined uniform rate approved for chain 



provid e rs prior to July 1. 1993. is consid e r e d to 
be void subsequent to July 1, 1993, if the com 
bined uniform rate is inconsistent with the rate 
sotting provisions of this S e ction. 
(a) A prospective rate is determined annually for each 
non-state facility to be effective for dates of service for a 12 
month rate period beginning each July h The prospective 
rate shall be paid to the provider for every Medicaid eligible 
day during the applicable rate year. The prospective rate 
may be determined after the effective date and paid retroac- 
tively to that date. The prospective rate may be changed 
due to a rate appeal under Rule .0308 of this Section or 
facility reclassification under Paragraph (b) of this Rule- 
Each non-state facility, except those facilities where Para- 
graph (v) of this Rule applies, shall be classified into one of 
the following groups: 

(1) Group 1; Facilities with 32 beds or less. 

Group 2_: Facilities with more than 32 beds. 
Group 3_; Facilities with medically fragile cli- 
ents. For rate reimbursement purposes under 
this Rule medically fragile clients are defined as 
any individual with complex medical problems 
who have chronic debilitating diseases or condi- 



01 



tions of one or more physiological or organ 
systems which generally make them dependent 
upon 24-hour a day medical/nursing/health 
supervision or intervention. 
(4) Facilities in group \ or 2 in Subparagraph (a)(1) 

or (2J of this Rule shall be further classified in 
accordance to the level of disability of the 
facility's clients, as measured by the Develop- 
mental Disabilities Profile (DPP) assessment 
instrument. A summary of the levels of disabil- 
ity is shown in the following chart: 



Level 



FACILITY 
DPP SCORE 

Low 



High 



I 


200.00 


300.00 


2 


125.00 


199.99 


3 


100.00 


124.99 


4 


75.00 


99.99 


5 


50.00 


74.99 



fb) Facilities shall be reclassified into appropriate groups 
as defined in Paragraph (a) of this Rule. 

(1) When a facility is reclassified, the rate will be 
adjusted retroactively back to the date of the 
event that caused the reclassification. This 
adjustment shall give full consideration to any 
reclassification based on the change in facts or 
circumstances during the year. Overpayments 
related to this retroactive rate adjustment shall 
be repaid to the Medicaid program. Underpay- 
ments related to this retroactive rate adjustment 
shall be paid to the provider. 

(2) The provider shall be given the opportunity to 
appeal the merits of the reclassification of any 
facility, prior to any decision by the Division of 
Medical Assistance. 

(3) The provider shall be notified in writing 30 days 
before the implementation of new rates resulting 
from the reclassification of any facility. 

(4) The providers and the Division of Medical 
Assistance shall make every reasonable effort to 
ensure that each and every facility is properly 
classified for rate setting purposes. 

(5) A provider shall file any request for facility 
reclassification in writing with the Division of 
Medical Assistance no later than 60 days subse- 
quent to the proposed reclassification effective 
date. 

(6) For facilities certified prior to July J^ 1993, the 
facility DPP score calculated in the Myers and 
Stauffer study shall be used to establish proper 
classification at July 1^ 1995. 

(7) For facilities certified after June 30, 1993, the 
most recent facility PPP score shall be used to 
establish proper classification. 

(8) A facility reclassification review shall use the 
most current facility DPP score. 

(9) The DPP score shall be calculated based on the 
methodology used in the State of Kansas and 
included in the Myers and Stauffer study. 

( 10) A facility's PPP score shall be subject to inde- 



233 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



pendent validation by the Division of Medical 
Assistance. 
(11) A new facility that has not had a DPP survey 
conducted on its clients shall be categorized as 
a level 2 facility for rate setting purposes, 
pending completion of the DPP survey. Upon 
completion of the DPP survey, the facility shall 
be subject to reclassification and rates will be 
adjusted retroactively back to the date of certifi- 
cation. Overpayments related to this retroactive 
adjustment shall be paid to the Medicaid pro- 
gram. Underpayments related to this retroactive 
rate adjustment shall be paid to the provider. 

(c) Facility rates under this Rule shall be established at 
July J^ 1995, under the following: 

(1) For facilities certified prior to July 1^ 1993, 
rates shall be derived from the 1993 cost re- 
ports, as reflected in the Myers and Stauffer 
study. 

(2) For facilities certified during fiscal year 1993- 

1994, the fiscal year 1994 facility specific cost 
report shall be used to derive rates. 

(3) For facilities certified during fiscal year 1994- 

1995, the fiscal year 1995 facility specific cost 
report shall be used to derive rates. 

(A) Rates for these facilities shall not be adjusted, 
except for the impact of inflation under Para- 
graph £k) of this Rule, until the fiscal year 
1995 cost report has been properly reviewed. 
Rates for these facilities shall be adjusted 
retroactively back to July 1^ 1995, once the 
fiscal year 1995 facility specific cost report has 
been properly reviewed. Overpayments re- 
lated to this retroactive rate adjustment shall be 
repaid to the Medicaid program. Underpay- 
ments related to this retroactive rate adjustment 
shall be paid to the provider. 

(4) Facilities with rates established during a rate 
appeal proceeding with the Pivision of Medical 
Assistance during fiscal years 1994 or 1995 shall 
not have their rates established in accordance 
with Subparagraph (c)(1), (c)(2), or (c)(3) of 
this Rule. 

(A) The rates for these facilities shall remain at the 
level approved in the rate appeal proceeding 
adjusted only for inflation, as reflected in 
Paragraph £k) of this Rule. 

(d) For facilities certified after June 30, 1993, rates 
developed from filed cost reports for fiscal years subsequent 
to 1993 may be retroactively adjusted if there is found to 
exist more than a two percent difference between the filed 
per diem cost and either the desk audited or field audited 
per diem cost for the same reporting period. Rates devel- 
oped from desk audited cost re ports may be retroactively 
adjusted if there is found to exist more than a two percent 
difference between the desk audited per diem cost and the 
field audited per diem cost for the same reporting period. 



The rate adjustment may be made after written notification 
to the provider 30 days prior to implementation of the rate 
adjustment. 

(e) Each prospective rate developed in accordance with 
Subparagraph (c)(1), (c)(2), or (c)(3) of this Rule consists 
of the sum of two components as follows: 

(1) Indirect care rate. 

(2) Pirect care rate. 

(f) A uniform industry wide indirect care rate is estab- 
lished for each facility category shown under Subparagraph 
(a)(1), (a)(2), or (a)(3) of this Rule. 

(1) The indirect rate for group I facilities is based 
on the fiftieth percentile of the following costs 
incurred by all group \ facilities with six beds or 
less, except those related by common ownership 
or control to more than 40 said facilities: 

(A) The sum of the cost of property ownership and 
use, administrative and general, and operation 
and maintenance of plant, as determined by the 
Myers and Stauffer study performed on the 
1993 base year cost reports. 

(2) The indirect rate for group 2 facilities is based 
on the fiftieth percentile of the costs noted in 
Part (f)(1)(A) of this Rule incurred by the group 

2 facilities, as determined by the Myers and 
Stauffer study performed on the 1993 base year 
cost reports. 

(3) The indirect rate for group 3 facilities is based 
on the fiftieth percentile of the costs noted in 
Part (f)(1)(A) of this Rule incurred by the group 

3 facilities, as determined by the Myers and 
Stauffer study performed on the 1993 base year 
cost reports. 

(4) The indirect rates established under Subpara- 
graphs (f)(1), (f)(2), and (f)(3) of this Rule shall 
be reduced as determined based on industry cost 
analysis by an amount not to exceed four percent 
to account for expected operating efficiencies. 

(g) The direct care rate for facilities certified prior to July 
ii 1993, is based on the Myers and Stauffer study per- 
formed on the 1993 base year cost reports. 

( 1) The direct care rate for all facilities certified 
during fiscal years subsequent to fiscal year 
1993 is based on the first facility specific cost 
report filed after certification. Based on said 
cost report, the direct care rate is equal to the 
sum of aU allowable costs reflected in the ICF- 
MR cost report cost centers, as included in the 
1CF-MR cost report format effective July J^ 
1993, except for the following indirect cost 
centers: 

(A) Property Ownership and Use 

(B) Operation and Maintenance of Plant and 
Housekeeping-Non-Labor 

(C) Administrative and General 

(2) The direct care rate shall be limited to the lesser 
of the actual amount incurred in the base year or 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



234 



PROPOSED RULES 



the cost limit derived from the fiftieth percentile 
of direct care costs incurred by the related 
facility group in the fiscal year 1993 base year, 
based on the Myers and Stauffer study. 

(3) The fiftieth percentile cost limit shall be reduced 
by one percent each year, for the four year 
period beginning July \± 1996, in order to 
account for expected operating efficiencies, as 
determined based on industry cost analysis. 

(4) The fiftieth percentile cost limit shall be in- 
creased each year by price level changes calcu- 
lated in accordance with Paragraph (k) of this 
Rule. 

(h) The indirect rate shall not be subject to cost settle- 
ment. 

(1) Costs above the indirect rate shall not be paid to 
the provider. 

(2) Costs savings below the indirect rate shall not be 
recouped from the provider. 

(ij The direct care rate shall be subject to cost settlement, 
based on the cost report, subject to audit, filed with the 
Division of Medical Assistance. 

(1) Costs above the direct rate shall not be paid to 
the provider. 

(2) Cost savings below the direct rate shall be 
recouped from the provider. 

(j) Facilities with rates established during a rate appeal 
proceeding with the Division of Medical Assistance during 
fiscal years 1994 or 1995 may choose to cost settle under 
the provisions of Paragraphs (h) and £i} of this Rule, or 
under the following procedure: 

(1) If^ during a cost reporting period, total allowable 
costs are less than total prospective payments, 
then a provider may retain one-half of said 
difference, up to an amount of five dollars 
($5.00) per patient day. The balance of unex- 
pended payments shall be refunded to the Divi- 
sion of Medical Assistance. Costs in excess of 
a facility's total prospective payment rate are not 
reimbursable. 



Ql 



LAI 



The facilities subject to the Paragraph shall make 
the election on cost settlement methodology on 
or before the filing of the annual cost report 
with the Division of Medical Assistance. 



An election to follow the cost settlement proce- 
dures of Paragraphs (h) and (i] of this Rule shall 
be irrevocable. 
(4) Rates established for these facilities during 
future rate appeal proceedings shall be subject to 
the cost settlement procedures of Paragraphs (h) 
and (i) of this Rule. 
(k) To compute each facility's current prospective rate, 
the direct and indirect rates established by Paragraphs (f) 
and (g) of this Rule are adjusted for price level changes 
since the base year. No inflation factor for any provider 
shall exceed the maximum amount permitted for that 
provider by federal or state law and regulations. 



(1) Price level adjustment factors are computed 

using aggregate costs in the following manners: 

(A) Costs shall be separated into three groups: 
(i) Labor, 

(ii) Non-labor, 
(iii) Fixed. 

(B) The relative weight of each cost group is 
calculated to the second decimal point by 
dividing the total costs of each group (labor, 
nonlabor, and fixed) by the total cost of the 
three categories. 

(C) Price level adjustment factors for each cost 
group shall be established as follows: 

(i) Labor. The percentage change for labor 
costs is based on the projected average 
hourly wage of North Carolina service 
workers. Salaries for all personnel shall 
be limited to levels of comparable posi- 
tions in state owned facilities or levels 
specified by the Division of Medical Assis- 
tance. 

(ii) Nonlabor. The percentage change for 
nonlabor costs is based on the projected 
annual change in the implicit price deflator 
for the Gross National Product as provided 
by the North Carolina Office of State 
Budget and Management. 

(iii) Fixed. No price level adjustment shall be 
made for this category. 

(D) The weights computed in Part (k)(l)(B) of this 
Rule shall be multiplied times the rates com- 
puted in Part (10(1X0 of this Rule. These 
weighted rates shall be added to obtain the 
composite inflation rate to be applied to both 
the direct and indirect rates. 

(1) Effective July J^ 1995, any rate reductions resulting 
from this Rule shall be implemented based on the following 
deferral methodology: 

Rates shall be reduced for the excess of current 



LU 

01 



(3) 



rates over base year costs plus inflation. 
Rates shall be reduced a maximum of 50 percent 
of the fiscal 1996 inflation rate for the excess of 
actual costs over applicable cost limits. This 
reduction shall result in the facility receiving at 
a minimum 50 percent of the 1996 inflation rate. 
Any excess reduction shall be carried forward to 
future years. 

Total reduction in future years related to the 
excess reduction carried forward from Subpara- 
graph (1)(2) of this Rule, shall not exceed the 
annual rate of inflation. This reduction shall 
result in the facility receiving at a minimum the 
rate established in Paragraph (1)(2) of this Rule. 
Any excess reduction shall be carried forward to 
future years, until the established rate equals that 
generated by Paragraphs (f), (g), and (k) of this 
Rule. 



235 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



(4) Rates calculated based on Subparagraphs (1)(2) 
and (3) of this Rule shall be cost settled based 
on the provisions of Subparagraph (i)(l) of this 
Rule until the fiscal year that the facility re- 
ceives full price level increase under Paragraph 
00 of this Rule. 

(A) A provider may make an irrevocable election 
to cost settle under the provisions of Para- 
graphs £h) and (i) of this Rule during the 
deferral period. 

(B) Once the rates calculated based on Subpara- 
graphs (1X2) and (3) of this Rule reach the 
fiscal year that the facility receives the full 
price level increase under Paragraph (TO, then 
said fiscal year's rates shall be cost settled 
based on Paragraphs (h) and (i) of this Rule. 

(C) Chain providers are allowed to file combined 
cost reports, for cost settlement purposes, for 
facilities that use the same cost settlement 
methodology and have the same uniform rate. 

(D) A provider may request from the Division of 
Medical Assistance permission to continue cost 
settlement under Subparagraph (i)(l) of this 
Rule after the deferral period expires. Said 
request shall be made each year. 30 days prior 
to the cost report due date. 

(m) The initial rate for facilities that have been awarded 
a Certificate of Need is established at the lower of the fair 
and reasonable costs in the provider's budget, as determined 
by the Division of Medical Assistance, or the projected 
costs in the provider's Certificate of Need application, 
adjusted from the projected opening date in the Certificate 
of Need application to the current rate period in which the 
facility is certified based on the price level change method- 
ology set forth in Paragraph (k) of this Rule, or the rate 
currently paid to the owning provider, if the provider 
currently has an approved chain rate for facilities in the 
related facility category. The rate may be rebased to the 
actual cost incurred in the first full year of normal opera- 
tions in the year an audit of the first year of normal opera- 
tion is completed. 

(1) In the event of a change in ownership, the new 
owner receives no more than the rate of payment 
assigned to the previous owner. 

(2) Except in cases wherein the provider has failed 
to file supporting information as requested by 
the Division of Medical Assistance, initial rates 
shall be granted to new enrolled facilities no 
later than 60 days from the provider's filing of 
properly prepared budgets and supporting infor- 
mation. 

(3) The initial rate for a new facility shall be appli- 
cable to aU dates of service commencing with 
the date the facility is certified by the Medicaid 
Program. 

(4) The initial rate for a new facility shall not be 
entered into the Medicaid payment system until 



the facility is properly enrolled in the Medicaid 
program and a Medicaid identification number 
has been assigned to the facility by the Division 
of Medical Assistance, 
(n) A provider with more than one facility may be 

allowed to recover costs through a combined uniform rate 

for all facilities. 

(1) Combined uniform rates for chain providers 
shall be approved upon written request from the 
provider and after review by the Division of 
Medical Assistance. 

(2) In determining a combined uniform rate for a 
particular facility group, the weighted average of 
each facility's rate, calculated in accordance to 
all other provisions of this Rule, shall be used. 

(o) Each out-of-state provider shall be reimbursed at the 
lower of the applicable North Carolina rate, as established 
by this plan for in-state facilities, or the provider's per diem 
rate as established by the state in which the provider is 
located. An out-of-state provider is defined as a provider 
that is enrolled in the Medicaid program of another state and 
provides ICF-MR services to a North Carolina Medicaid 
client in a facility located in the state of enrollment. Rates 
for out- of-state providers are not subject to cost settlement. 

(p) Under no circumstances shall the Medicaid per diem 
rate exceed the private pay rate of a facility. 

(q) Should the Division of Medical Assistance be unable 
to establish a rate for a facility, based on this Rule and the 
applicable facts known, the Division of Medical Assistance 
may approve an interim rate. 

(1) The interim rate shall not exceed the rate cap 
established under this Section for the applicable 
facility group. 

(2) The interim rate shall be replaced by a perma- 
nent rate, effective retroactive to the commence- 
ment of the interim rate, by the Division of 
Medical Assistance, upon the determination of 
said rate based on this Rule and the applicable 
facts. 

(3) The provider shall repay to the Division of 
Medical Assistance any overpayment resulting 
from the interim rate exceeding the subsequent 
permanent rate. 

(r) In addition to the prospective per diem rate developed 
under this Section, effective July 1, 1992, an interim 
payment add on shall be applied to the total rate to cover the 
estimated cost required under Title 29, Part 1910, Subpart 
2, Section 1910.1030 of the Code of Federal Regulations. 
The interim rate shall be subject to final settlement reconcil- 
iation with reasonable cost to meet the requirements of 
Section 1910.1030. The final settlement reconciliation shall 
be effectuated during the annual cost report settlement 
process. An interim rate add on to the prospective rate shall 
be allowed, subject to final settlement reconciliation, in 
subsequent rate periods until cost history is available to 
include the cost of meeting the requirements of Section 
1910.1030 in the prospective rate. This interim add on shall 



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236 



PROPOSED RULES 



be removed, upon 10 days written notice to providers, 
should it be determined by appropriate authorities that the 
requirements under Title 29, Part 1910, Subpart 2, Section 
1910.1030 of the Code of Federal Regulations do not apply 
to ICF-MR facilities. 

(s) All rates, except those noted otherwise in this Rule, 
approved under this Rule are considered to be permanent. 

(t) In the event that the rate for a facility cannot be 
developed so that it shall be effective on the first day of the 
rate period, due to the provider not submitting the required 
reports by the due date, the average rate for facilities in the 
same facility group, or the facility's current rate, whichever 
is lower, shall be in effect until such time as the Division of 
Medical Assistance can develop a new rate. 

(u) When the Division of Medical Assistance develops a 
new rate for a facility for which a rate was paid in accor- 
dance with Paragraph (t) of this Rule, the rate developed 
shall be effective on the first day of the second month 
following the receipt by the Division of Medical Assistance 
of the required reports. The Division of Medical Assistance 
may, upon its own motion or upon application and just 
cause shown by the provider, within 60 days subsequent to 
submission of the delinquent report, make the rate retroac- 
tive to the beginning of the rate period in question. Any 
overpayment to the provider resulting from this temporary 
rate being greater than the final approved prospective rate 
for the facility shall be repaid to the Medicaid Program. 

(v) ICF-MR facilities meeting the requirements of the 
North Carolina Division of Facility Services as a facility 
affiliated with one or more of the four medical schools in 
the state and providing services on a statewide basis to 
children with various developmental disabilities who are in 
need of long-term high acuity nursing care, dependent upon 
high technology machines (i.e. ventilators and other support- 
ive breathing apparatus) monitors, and feeding techniques 
shall have a prospective payment rate that approximates cost 
of care. The payment rate may be reviewed periodically, 
no more than quarterly, to assure proper payment. A cost 
settlement at the completion of the fiscal period year end is 
required. Payments in excess of cost are to be returned to 
the Division of Medical Assistance. 

(w) A special payment in addition to the prospective rate 
shall be made in the year that any provider changes from the 
cash basis to the accrual basis of accounting for vacation 
leave costs. The amount of this payment shall be deter- 
mined in accordance with Title XVIII allowable cost 
principles and shall equal the Medicaid share of the vacation 
accrual that is charged in the year of the change including 
the cost of vacation leave earned for that year and all 
previous years less vacation leave used or expended over the 
same time period and vacation leave accrued prior to the 
date of certification. The payment shall be made as a lump 
sum payment that represents the total amount due for the 
entire fiscal year. An interim payment may be made based 
on an estimate of the cost of the vacation accrual. The 
payment shall be adjusted to actual cost after audit. 

(x) The annual prospective rate, effective beginning each 



July 1, for facilities that commenced operations under the 
Medicaid Program subsequent to the base year used to 
establish rates, and therefore did not file a cost report for 
the base year, shall be based on the facility's initial rate, 
established in accordance with Paragraph (m) of this Rule, 
and the applicable price level changes, in accordance with 
Paragraph (1) of this Rule. 

Authority- G.S. 108A-25(b); 108A-54; 108A-55; 42 C.F.R. 
Part 447, Subpart C. 

.0305 ALLOWABLE COSTS 

(a) To be considered allowable, costs shall not exceed fair 
and reasonable levels as determined by Division of Medical 
Assistance, and shall be required to provide necessary client 
care under the Medicaid Program. 

( 1 ) The cost of goods or services sold to non-Medic- 
aid clients shall be excluded in determining the 
allowable client related expenses reimbursable 
under the Medicaid program. If the provider 
has not determined the cost of such items, the 
revenue generated from such sales shall be used 
to offset the total cost of such services. 

(2) Examples of sources of such income items 
include, but are not limited to: 

(A) supplies and drugs sold by the facility for use 
by nonresidents. 

(B) telephone and telegraph services for which a 
charge is made, 

(C) discount on purchases, 

(D) employee rental of living quarters, 

(E) cafeterias, 

(F) meals provided to staff or a client's guest for 
which there is a charge, 

(G) lease of office and other space by concession- 
aires providing services not related to interme- 
diate care facility services, 

(H) interest income except for income earned of 
qualified pension funds and income from gifts 
or grants which are donor restricted. 

(b) Except where specific rules concerning allowability of 
costs are stated herein, the Division of Medical Assistance 
shall use as its major determining factor in deciding on the 
allowability of costs, the Medicare Provider Reimbursement 
Manual, published by the U.S. Department of Health and 
Human Services' Health Care Financing Administration 
(HCFA). Where specific rules stated herein or in HIM- 15 
are silent concerning the allowability of costs, the Division 
of Medical Assistance shall determine allowability of costs 
based on a case specific review taking into consideration the 
reasonableness of said costs and their relationship to client 
care and generally accepted accounting principles, consistent 
with this Rule. 

(c) As determined by the Division of Medical Assistance, 
expenses or portion of expenses reported by an individual 
facility that are not reasonably related to the efficient and 
economical provision of care in accordance to the require- 



237 



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10:4 



PROPOSED RULES 



ments of this Rule, because of either the nature or amount 
of the item, shall not be allowed. 

(1) Reasonable compensation, as determined by 
Division of Medical Assistance, of individuals 
employed by a provider is an allowable cost, 
provided such employees are engaged in client 
related functions and that the compensation is 
reasonable in light of industry historical data. 
The historical data shall include, but not be 
limited to, salary levels for similar services in 
the same market in which the facility is located. 

(2) Payroll records shall be maintained by the 
provider to substantiate the staffing costs re- 
ported to the Division of Medical Assistance. 
Payroll records shall indicate each employee's 
classification, hours worked, rate of pay, and the 
functional area to which the employee was 
assigned and actually worked. If an employee 
performs duties in more than one cost center, 
the provider shall maintain periodic time studies 
in order to allocate salary and wage costs to the 
appropriate cost centers, as determined by the 
Division of Medical Assistance. These periodic 
time studies shall be maintained in accordance 
with the Medicare Provider Reimbursement 
Manual. 

(3) The Division of Medical Assistance shall not 
reimburse costs related to excess staff. 

(4) Compensation for owners is allowable only for 
duties which otherwise would require the em- 
ployment of another individual in the provision 
of ICF-MR related services. Said compensation 
shall be limited to a reasonable amount, as 
determined by the Division of Medical Assis- 
tance, not to exceed that paid in the local market 
place for similar type duties. Compensation for 
owners is not allowable where the services are 
not related to the provision of ICF-MR related 
services. 

(d) As determined by the Division of Medical Assistance, 
costs which are not properly related to client care or 
treatment, and which principally afford diversion, entertain- 
ment or amusement to owners, operators, or employees of 
the facility shall not be allowed. 

(e) As determined by the Division of Medical Assistance, 
costs for any interest expense related to funding expenses in 
excess of a fair and reasonable amount, or penalty imposed 
by governmental agencies or courts and the costs of insur- 
ance policies obtained solely to insure against such penalty, 
shall not be allowed. 

(f) As determined by the Division of Medical Assistance, 
costs of contributions or other payments to political parties, 
candidates or organizations shall not be allowed. 

(g) As determined by the Division of Medical Assistance, 
only that portion of dues paid to any professional association 
which has been demonstrated to be reasonable in amount 
and attributable to Medicaid Program related expenditures 



other than for lobbying or political contributions shall be 
allowed. The burden of proof shall be on the provider to 
justify the inclusion of any professional association dues. 
Association budgets may be considered in determining said 
justification. 

(h) Any cost of the sale, purchase, alteration, construc- 
tion, rehabilitation or renovation of a physical plant or 
interest in real property shall be considered allowable up to 
the amount approved by the Division of Medical Assistance. 
Cost is limited by the applicable provisions of Paragraphs (i) 
and (1) of this Rule. Cost is allowable only to the extent it 
is necessary for the provision of adequate client care under 
this Rule, as determined by the Department of Human 
Resources. Cost, and the associated financing, equal to or 
greater than ten thousand dollars ($10,000) related to 
existing facilities or the construction of replacement facilities 
is subject to prior Division of Medical Assistance approval. 
Providers shall not incur said costs in a piece meal fashion 
in order to avoid the ten thousand dollars ($10,000) limit. 
Failure to acquire prior approval may result in the disallow- 
ance of said cost from Medicaid reimbursement. 

( 1 ) The provider shall file the necessary documenta- 
tion to support the justification for the proposed 
expenditure and related financing with the 
Division of Medical Assistance no later than 90 
days prior to the proposed transaction's com- 
mencement date. 

(2) The Division of Medical Assistance shall render 
a decision in writing to the provider on the 
propriety of the proposed transaction no later 
than 30 days prior to the proposed transaction's 
commencement date. 

(3) The time requirements of Subparagraphs (h)(1) 
and (2) of this Rule may be altered, with just 
cause shown, by the Division of Medical Assis- 
tance. 

(4) For any transaction resulting in a change of 
ownership, the valuation of the asset shall be 
limited to the lesser of the allowable acquisition 
cost of the asset to the first owner of record who 
has received Medicaid payment for said asset, 
less any accumulated depreciation, plus any 
allowable improvements, or the acquisition cost 
of the asset to the new owner. Payment of rent 
by the Medicaid enrolled provider to the lessor 
of a facility shall constitute Medicaid payments 
under this Rule. 

(5) Costs (including legal fees, accounting and 
administrative costs, travel costs, and the costs 
of feasibility studies) attributable to the negotia- 
tion or settlement of the sale or purchase of any 
capital asset (by acquisition or merger) for 
which any payment has previously been made 
under Medicaid, shall not be allowable for 
reimbursement. 

(6) An exception may be applied by the Division of 
Medical Assistance to the requirements of either 



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May 15, 1995 



238 



PROPOSED RULES 



Subparagraph (h)(4) or (5) of this Rule, if it can 
be proven that the change in ownership shall 
result in increasing the level of care provided to 
the facility's clients up to the level required by 
the Division of Facility Services. 

(A) In order to meet this exception, it shall be 
proven that the previous facility owner was not 
providing, and was incapable of providing, 
adequate client service, as determined by the 
Department of Human Resources. 

(B) The burden of proof in supporting this excep- 
tion is on the provider. The provider shall 
request, in writing, consideration of this ex- 
ception from the Division of Medical Assis- 
tance. 

(C) Consideration of this exception may result in 
the Division of Medical Assistance allowing 
some or all of the costs in Subparagraph (h)(5) 
for Medicaid reimbursement. 

(D) Consideration of this exception may result in 
the Division of Medical Assistance allowing a 
substitute valuation for the transferred property 
under Subparagraph (h)(4) that is greater than 
the limit noted, but in no instance greater than 
the acquisition cost of the asset to the new 
owner. 

(i) A facility's annual rental payments for real property 
may be considered an allowable cost subject to the following 
conditions and the limits included in Paragraph (i)(l) of this 
Rule: 

( 1 ) The lease is reviewed by and acceptable to the 

Division of Medical Assistance. 

(A) The lease shall not be acceptable if the associ- 
ated asset(s) are not needed for client care as 
determined by the Division of Medical Assis- 
tance. 

(B) The lease shall not be acceptable if alternate 
means of financing is deemed available and 
more economical. In making this determina- 
tion all aspects of the economic impact of the 
lease shall be examined, including length of 
lease, the cost of the asset to the owner, and 
the incremental rate of return provided to the 
lessor. In addition, the leasee's incremental 
implicit rate of interest and financial position 
shall be considered. 

(C) The test of reasonableness shall take into 
account the agreement between the owner and 
the tenant regarding the payment of related 
property costs. 

(D) Absent clear justification to the contrary, 
material capital improvements to leased prop- 
erty that are necessary to maintain the asset in 
its ordinary' state of usability at the commence- 
ment of the lease, shall be the responsibility of 
the lessor. Examples of said costs are roof or 
utility service replacement due to reasons 



beyond the prudent control of the lessee. 

(E) Effective July 1, 1993, requests for prior 
approval of new leases and lease renewals 
must be submitted whenever possible at least 
120 days prior to the last date for the exercise 
of the lease or lease renewal option. HUD 
leases with individual ICF-MR clients are not 
subject to this requirement. 

(F) Failure to acquire prior approval of leases and 
lease renewals may result in the disallowance 
of said cost from Medicaid reimbursement. 

(2) The lease shall be considered an arm's-length 
transaction under HIM-15. Leases failing the 
HIM- 15 arm's-length transaction test shall be 
reimbursed at the leased asset's reasonable cost 
of depreciation, interest, if any, and other 
related expenses, including but not limited to 
reasonable maintenance costs, as determined by 
the Division of Medical Assistance. It is the 
responsibility of the provider to maintain 
auditable records to document these ownership 
costs to the Division of Medical Assistance or its 
designated contract auditors. Undocumented 
costs may be disallowed. 

(3) The lease amount is comparable to similar leases 
for properties with similar functions in the same 
geographical area. 

(4) The lease agreement between unrelated parties 
shall include the provision that the amount of 
rental to be paid by the lessee to the lessor shall 
not, in any event, exceed the amount approved 
by the Division of Medical Assistance. 

(j) Depreciation shall be an allowable cost when based 
upon factors of historical costs and useful life. Depreciation 
shall be subject to the provisions of this Paragraph and 
Subparagraph (j)(l) of this Rule. For the purpose of this 
Section: 

(1) Unless an exception is made by the Division of 

Medical Assistance, the useful life shall be the 
higher of the reported useful life or that from 
the Estimated Useful Lives of Depreciable 
Hospital Assets (1988 edition), which is incorpo- 
rated by reference with subsequent changes and 
amendments. A copy of the Useful Lives of 
Depreciable Hospital Assets can be obtained by 
writing to the American Hospital Association. 
840 Lake Shore Drive, Chicago Illinois, 60611, 
at a cost of thirty one dollars and ninety-five 
cents ($31.95) per copy. In certain instances, a 
useful life that is based upon historical experi- 
ence as shown by documentary evidence and 
approved by the Division of Medical Assistance 
may be allowed. Should the provider desire a 
depreciation rate different from that based on the 
general Rule in Subparagraph (j)( 1 ) of this Rule, 
then said provider shall make the request in 
writing to the Division of Medical Assistance. 



239 



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May IS, 1995 



10:4 



PROPOSED RULES 



Upon review and analysis, the Division of 
Medical Assistance shall make a determination 
in writing as to the reasonableness of said re- 
quest. 

(2) The depreciation method used shall be the 
straight-line method. 

(3) Unless an exception is granted by the Division 
of Medical Assistance, depreciated rates shall be 
applied uniformly and consistently, in accor- 
dance with this Rule and generally accepted 
accounting principles. Should the provider 
discover that depreciation has been improperly 
recorded in prior years, then the provider shall 
within 30 days report the error to the Division 
of Medical Assistance. The impact of the error 
on the provider's rate shall be fully considered 
by the Division of Medical Assistance and a rate 
adjustment may be made, with due cause shown. 
Failure to record depreciation properly may 
result in disallowance for Medicaid reimburse- 
ment purposes. 

(4) Depreciation paid to the provider by the Medic- 
aid Program shall be prudently used by said 
provider to meet the financial requirements of 
providing adequate service to the ICF-MR 
clients. 

(A) Payment to related parties for costs disallowed 
by this Rule for Medicaid reimbursement may 
be considered imprudent use of depreciation 
reimbursement. 

(B) Imprudent use of Medicaid reimbursement of 
depreciation may result in the provider being 
required by the Division of Medical Assistance 
to fund the depreciation through a qualified 
independent entity or disallowance of deprecia- 
tion for Medicaid reimbursement. 

(5) In order to substantiate depreciation expense for 
Medicaid reimbursement purposes, the property 
records shall include, at a minimum, all of the 
following, for assets purchased on or after July 
1, 1993: 

(A) The depreciation method used, 

(B) A description of the asset, 

(C) The date the asset was acquired, 

(D) The cost of the asset, 

(E) The salvage value of the asset, 

(F) The depreciation cost, 

(G) The estimated useful life of the asset, 
(H) The depreciation expense each year 
(1) The accumulated depreciation. 

(6) The recovery of losses associated with the 
disposal or abandonment of assets used to pro- 
vide necessary services to the Medicaid program 
shall be determined on a case by case basis. 
Requests for recovery shall be made in writing 
and are subject to prior Division of Medical 
Assistance approval. Failure to acquire approval 



may result in the disallowance of said costs. 
(7) The treatment of gains associated with the 

disposal of assets used to provide necessary 
services to the Medicaid program shall be based 
on this Rule and the HIM-15. 
(k) Interest cost may be considered an allowable cost 
subject to the following conditions, and the limits included 
in Paragraph (k)(l) of this Rule: 

(1) Interest for capital indebtedness, where the 
interest expense results from the initial financing 
of the capital indebtedness and the capital indebt- 
edness represents all or part of the current 
Division of Medical Assistance approved value 
of the property. The property shall be necessary 
for the provision of adequate service, as deter- 
mined by the Department of Human Resources, 
to the clients of the ICF-MR facility. The 
financing shall be prudently incurred. 

(2) The interest rate shall not be in excess of the 
amount a prudent borrower would pay at the 
time the loan was incurred. In determining the 
reasonableness of the interest rate, all associated 
factors at the time the loan was incurred shall be 
considered, including, but not limited to the 
following: 

(A) Current market rates of interest in the econ- 
omy. 

(B) Industry specific rates of interest. 

(C) Provider specific financial position. 

(3) The loan agreement shall be entered into be- 
tween parties not related through control, owner- 
ship, affiliation, or personal relationship as 
defined in HIM-15, unless this provision is 
waived in writing by the Division of Medical 
Assistance. Such waiver shall be based on, but 
not limited to, a demonstration of need for the 
indebtedness and cost savings resulting from the 
transaction. The burden of proof shall be on the 
provider to provide proper support and justifica- 
tion for such waiver to the Division of Medical 
Assistance. Loans from a related party must be 
clearly identified and reported separately on the 
annual cost report. 

(4) Interest expense on working capital indebtedness 
is allowable, subject to the Division of Medical 
Assistance's approved level of working capital, 
and subject to the standards listed of this Rule. 

(A) Interest on excess working capital is specifi- 
cally denied. 

(B) Working capital shall be established at the 
level necessary to support the facility's opera- 
tions, after taking into full consideration the 
lead/lag impact of the facility's expenditures 
and reimbursements. 

(5) Interest expense for capital indebtedness where 
the interest expense results from the refinancing 
of the capital indebtedness, and the refinancing 



10:4 



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May 15, 1995 



240 



PROPOSED RULES 



has the prior approval of the Division of Medi- 
cal Assistance, shall be allowed in that amount 
associated with the outstanding principal prior to 
refinancing. Interest costs may be allowed in 
excess of the amount associated with the out- 
standing principal balance prior to refinancing, 
if the purpose of the debt is to acquire assets to 
be used for care of persons served by the facility 
and all other applicable requirements of this 
Rule are met. Interest expense resulting from 
the inclusion of the closing costs, such as, but 
not limited to, attorney's fees, recording costs 
and points in the refinancing transaction shall be 
considered allowable. 

(A) The provider should file all necessary docu- 
ments supporting its request for refinancing 
prior approval to the Division of Medical 
Assistance no later than 120 days prior to the 
proposed refinancing date. 

(B) The Division of Medical Assistance shall 
render a decision regarding the prior approval 
request no later than 30 days prior to the 
proposed refinancing date. 

(C) Based upon just cause shown, the Division of 
Medical Assistance may waive the time re- 
quirements included in Parts (k)(5)(A) and (B) 
of this Rule, but in all cases there shall be 
enough time allowed to evaluate the proposed 
refinancing. 

(6) In all cases, in order for the interest expense to 
be allowable it shall be necessary to satisfy a 
financial need related to the adequate provision 
of recipient care, as determined by the Division 
of Medical Assistance. Loans which result in 
excess funds or investments are not considered 
necessary. 

(7) Interest expense may not be allowable when 
related to loans that failed to receive prior 
approval, as required, from the Division of 
Medical Assistance. 

(8) In no event shall interest expense be allowed on 
a facility's cost that is deemed to be excessive. 

(1) The annual capital cost or lease expense limitations 
shall apply: 

(1) To all facilities with 21 or more beds and to 

facilities consisting of multiple detached build- 
ings in which at least one contains nine certified 
beds. The facilities covered by this limit shall 
have been awarded a Certificate of Need before 
January 1, 1993. The annual capital cost or 
lease expense limit shall be the lesser of actual 
cost or the sum of Parts (A) and (B) as follows: 
(A) The annual depreciation on plant and fixed 
equipment that would be computed on assets 
equal to thirty thousand dollars ($30,000) per 
bed (capital recovery base) during fiscal year 
1982-83 adjusted for changes in the following 



cost indexes: 

(i) For the period after 1982-83 and through 
the period 1991-92 the capital recovery 
base shall be adjusted for changes in the 
Dodge Building Cost Index of North Caro- 
lina Cities. 

(ii) For the period beginning July 1, 1992 the 
capital recovery base shall be adjusted for 
changes in the implicit price deflator for 
residential structures as provided by the 
Office of State Budget and Management. 
Depreciation expense shall be computed 
using the straight line method of deprecia- 
tion and the useful life standards estab- 
lished by the American Hospital Associa- 
tion. 

(B) An interest allowance equal to 10 percent of 
the capital recovery base used to compute 
annual depreciation on plant and fixed equip- 
ment. 

(C) This annual capital cost or lease expense limit 
does not apply to leases in effect prior to 
August 3, 1983. 

(2) To all facilities that have been awarded a Certifi- 

cate of Need on or after January 1, 1993, the 
annual capital cost or lease expense shall be 
limited to the lesser of actual cost or the fair and 
reasonable depreciation and interest expense 
calculated on the capital recovery base in effect 
at the time of certification and enrollment into 
the Medicaid program. 

(A) Depreciation expense shall be computed using 
the straight line method of depreciation and the 
useful life standards established by the Ameri- 
can Hospital Association. 

(B) Interest expense is computed using a 10 per- 
cent rate of interest. 

(C) The capital recovery base is established as 
thirty thousand dollars ($30,000) of plant and 
fixed equipment assets per bed during the 
fiscal year 1982-83 adjusted for the changes in 
the cost indexes contained in Subparagraphs 
(1)(1)(A), (i) and (ii) of this Rule. 

(D) Recovery of the cost of material additions to 
plant and fixed equipment subsequent to certif- 
ication and enrollment in the Medicaid pro- 
gram shall be subject to review on a case by 
case basis, consistent with the provisions of 
this Rule. 

(E) This capital cost or lease expense limitation 
should be considered the absolute maximum 
allowable for Medicaid reimbursement. In 
evaluating the reasonableness of a particular 
facility's capital cost or lease expense, regional 
costs of land and construction should be con- 
sidered. In cases where the reasonable re- 
gional costs are less than those derived from 



241 



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10:4 



PROPOSED RULES 



Subparagraph (1)(2)(C) of this Rule, then the 
regional costs should be used in determining 
the appropriate capital cost or lease expense 
limitations, 
(i) Generally, in determining fair and reason- 
able facility cost, the average cost of 
similar construction in the same local area 
should be used. This test of reasonable- 
ness should be applied to all components 
of the facility's construction cost, includ- 
ing square footage and per unit costs, 
(ii) Absent strong, clear justification to the 
contrary, no six bed facility shall be al- 
lowed to recover capital cost and lease 
expense related to square footage in excess 
of 3200 square feet. 
(3) Failure to provide supporting evidence of actual 
facility cost incurred may result in disallowance 
of said cost, 
(m) For providers whose annual reimbursement from the 
Medicaid program exceeds one million dollars ($1,000,000,) 
all contracts with related parties as defined by HIM-15 in 
the amount often thousand dollars ($10,000) or more shall 
receive prior approval from the Division of Medical 
Assistance. 

(1) Failure to file said contracts with the Division of 
Medical Assistance may result in disallowance of 
the related cost from Medicaid reimbursement. 

(2) The contracts should be filed with the Division 
of Medical Assistance 90 days prior to the 
effective date of said contracts. 

(n) — Restricted funds aro funds expended by the facility 
which include grants, gifts, and income from endowments, 
wh e th e r oaoh or oth e rwis e , whioh shall b e us e d only for a 
spooifio purpos e as d e signat e d — by th e donor or grant 
instrument. — Items purchased with restricted funds are to bo 
excluded from the Medicaid cost report. — Unrestricted funds 
ar e funds exp e nd e d by th e provid e r whioh inoludo grants, 
gifts, and inoom e from e ndowm e nts, cash or oth e rwis e , 
given to a provider without re s triction by the donor as to 
thoir uso. Items purchased with unrestricted funds aro to bo 
e xoludod from th e M e dioaid oost r e port. 

(n) Unrestricted grants, gifts, and income from endow- 
ments are funds, cash or otherwise, given to a provider 
without restriction by the donor as to their use. Restricted 
or designated grants, gifts and income from endowments are 
funds, cash or otherwise, which must be used only for a 
specific purpose designated by the donor. This does not 
refer to unrestricted grants, gifts, or income from endow- 
ments which have been restricted for a specific purpose by 
the provider. 

(1) Costs reflected on the Medicaid cost report that 
are supported from unrestricted or restricted 
funds shall be offset by said funds on the cost 
report. 

(2) In determining the period in which funds are 
deemed used, the following shall be considered: 



12} 



14) 



15} 



16} 



12} 



(A) If the terms of the contribution state the period 
of time during which the funds are to be 
applied, then said funds shall be deemed used 
in the designated period. 

(B) If the terms of the contribution do not state the 
period of time during which the funds are to 
be applied, then said funds shall be deemed 
used in the year of receipt unless the prepon- 
derance of evidence supports a different con- 
clusion. Evidence to be considered on this 
matter includes, but is not limited to, the 
following: 

(i) The decision of the Board of Directors or 
management when to prudently use the 
funds, consistent with the provider's fidu- 
ciary responsibility, 
(ii) Intentions of the contributor, 
(iii) Supporting documentation, including gen- 
eral ledger accounting. 
In determining what costs are supported by the 
funds, the preponderance of evidence shall be 
considered; including but not limited to, the 
following: 

(A) The decision of the Board of Directors or 
management, consistent with the provider's 
fiduciary responsibility. 

(B) Intentions of the contributor. 

(C) Supporting documentation, including general 
ledger accounting. 

Consistent with the intentions of the contributor, 
the funds may be used to support any of the 
following costs: 

(A) Non-Medicaid program costs. 

(B) Medicaid program allowable costs. 

(C) Medicaid program unallowable costs. 
Consistent with the intentions of the contributor, 
and absent the preponderance of evidence to the 
contrary, the funds shall be deemed used to 
support Medicaid program allowable costs. 
The revenue offset in Subparagraph (1) of this 
Paragraph may be reduced by the reasonable 
cost of acquiring the contributed funds. 

(A) Reasonable costs are those incurred by an 
economic and efficient provider. 

(B) The provider's general ledger and supporting 
documents should support the level of acquisi- 
tion cost. 

(C) The revenue offset shall not be reduced below 
zero. 

Providers are encouraged to raise these funds to 
offset Medicaid allowable costs. 



(o) When multiple facilities or operations are owned by 
a single entity with a central office, the central office 
records shall be maintained as a separate set of records with 
costs and revenues separately identified and appropriately 
allocated to individual facilities. Allocation of central office 
costs shall be reasonable and conform to the directives of 



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242 



PROPOSED RULES 



the Division of Medical Assistance and generally accepted 
accounting principles. Such costs are allowable only to the 
extent that the central office is providing services related to 
client care and the provider can demonstrate that the central 
office costs improved efficiency, economy, or quality of 
recipient care. The burden of demonstrating that costs are 
client related lies with the provider. 

( 1 ) If a provider has business enterprises other than 
those reimbursed by Medicaid, then the reve- 
nues, expenses, statistical and financial records 
for such enterprises shall be clearly identifiable 
from the records of the operations reimbursed 
by Medicaid. 

(2) If an audit establishes that records are not main- 
tained so as to clearly identify Medicaid infor- 
mation, none of the co-mingled costs shall be 
recognized as Medicaid allowable costs and the 
provider's rate shall be adjusted to reflect the 
disallowance as of the earlier of the commence- 
ment of the rate period related to the co-mingled 
costs, or the commencement of the co-mingling 
of said costs. 

(3) After the co-mingled costs have been satisfacto- 
rily allocated and reported to the Division of 
Medical Assistance, and based on good cause 
shown, the Division of Medical Assistance may 
retroactively adjust the facility's rate. 

(4) Central office costs are generally charged to the 
Administrative and General cost center. In some 
cases, however, certain personnel costs which 
are direct patient care oriented may be allocated 
to direct care cost centers if time records are 
maintained to document the performance of 
direct patient care services. No home office 
overhead may be so allocated. The basis of this 
allocation among facilities participating in the 
North Carolina Medicaid program may be: 

(A) specific time records of work performed at 
each facility, 

(B) client days in each facility to which the costs 
apply relative to the total client days in all the 
facilities to which the costs apply, or 

(C) any other allocation method approved by the 
Division of Medical Assistance. 

(p) All criteria and limitations used by the Division of 
Medical Assistance to subject individual provider cost data 
to tests of reasonableness shall be made available to a 
provider upon written request. In determining reasonable- 
ness of costs, the Division of Medical Assistance may 
compare major cost centers or total costs of similar provid- 
ers and may request satisfactory documentation from 
providers whose cost does not appear to be reasonable. 
Similar providers are those with like levels of client care, 
size, and geographic location. 

(q) Start-up costs are costs incurred by an ICF-MR 
facility while preparing to provide services at said facility. 
It includes the cost incurred by providers to provide services 



at the level necessary to obtain certification less any revenue 
or grants related to start-up. The North Carolina Medicaid 
Program shall reimburse these start-up costs up to a maxi- 
mum equal to the facility's rate times its beds times 120 
days. 

(1) Effective for all facilities whose Certificate of 
Need was granted on or after January 1, 1993, 
the start-up cost reimbursement shall be added to 
the facility's per diem rate calculated in accor- 
dance to the related provisions of this plan. 
These start-up costs shall be amortized over a 36 
month period and shall be reported as adminis- 
trative and general in the cost report. No ad- 
vance of these start-up costs shall be made. 
These costs shall not be included in calculating 
the facility's total AG/OMP costs for rate setting 
purposes in accordance with this Rule. 

(2) Effective for all facilities whose CON was 
granted prior to January 1, 1993, the start-up 
reimbursement shall be made in addition to the 
facility's per diem rate. No advance of start-up 
funds shall be made prior to the submission of 
the start-up cost report. An interim payment not 
to exceed 80 percent of the allowable start-up 
costs can be made at the written request of a 
provider after a start-up cost report has been 
filed. The remaining balance of appropriately 
incurred start-up costs shall be paid after the 
desk audit of the start-up cost report has been 
completed. Any balance due to the Medicaid 
program shall be repaid promptly. 

(3) A start-up cost report shall be filed in accor- 
dance to the guidelines established by the Divi- 
sion of Medical Assistance. 

(A) The start up cost report shall be filed with the 
Division of Medical Assistance Audit Section. 

(B) Schedule E of the start up cost report shall be 
filed with the Division of Medical Assistance's 
Rate Setting Section. 

(4) Allowable start-up costs may include, but not be 
limited to: 

(A) personal services expenses, 

(B) utility expenses, 

(C) property taxes, 

(D) insurance expenses, 

(E) employee training expenses, 

(F) housekeeping expenses, 

(G) repair and maintenance expenses, 
(H) administrative expenses. 

(5) All costs that are properly identifiable as organi- 
zation costs shall be classified as such and 
excluded from start-up costs. 

(6) Cost related to increasing bed capacity in an 
existing facility shall not be treated as start-up 
costs. 

(r) Only that portion of management fees that is directly 
related to client care and is not otherwise functionally 



243 



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May 15, 1995 



10:4 



PROPOSED RULES 



covered by the current staffing pattern is allowable in the 
calculation of a facility's actual, allowable, and reasonable 
costs. Management fees on a per diem basis shall be 
limited to seven percent of the maximum intermediate care 
rate for nursing facilities enrolled in the Medicaid Program. 
Management fees are charged to the Administrative and 
General Cost Center. In some cases, however, a portion of 
a management fee may be allocated to a direct patient care 
cost center if time records are maintained to document the 
performance of direct patient care services. The amount so 
allocated may be equal only to the salary and fringe benefits 
of persons who are performing direct patient care services 
while employed by the management company. Records to 
support these costs shall be made available to staff of the 
Division of Medical Assistance. The basis of this allocation 
among facilities participating in the North Carolina Medicaid 
program may be: 

(1) specific time records of work performed at each 
facility, or 

(2) client days in each facility to which the costs 
apply relative to the total client days in all 
facilities to which the costs apply. 

(s) The following costs are considered non-allowable 
facility costs because they are not related to client care or 
are specifically disallowed under the North Carolina State 
Plan: 

(1) bad debts; 

(2) advertising, except personnel want ads, and one 
line yellow page (indicating facility address): 

(3) charity, courtesy allowances, discounts, refunds, 
rebates and other similar items granted by the 
provider; 

(4) life insurance (except for employee group plans 
and reasonable key man life insurance premiums 
required by financial institutions in an outstand- 
ing loan agreement); 

(5) prescription drugs and insulin (available to 
recipients under the State Medicaid Drug Pro- 
gram); 

(6) vending machine expenses; 

(7) state or federal corporate income taxes, plus any 
penalties and interest; 

(8) telephone, television, or radio for personal use 
of client; 

(9) retainers, unless itemized services of equal value 
have been rendered; 

(10) fines or penalties; 

(11) ancillary costs that are billable to Medicare or 
other third party payors; 

(12) property taxes and other expenses related to real 
estate deemed by the Division of Medical Assis- 
tance to be in excess of the reasonable amount 
needed for the physical facility; 

(13) property taxes, insurance, maintenance and other 
expenses related to facility costs deemed by the 
Division of Medical Assistance to be in excess 
of the reasonable amount necessary for quality 



client care; 

(14) costs associated with lawsuits filed against the 
Department of Human Resources which are not 
upheld by the courts; 

(15) personal use of company assets resulting in 
unreasonable levels of compensation; 

(16) meals provided to employees not involved in the 
modeling process required to meet the clients' 
habilitation plan; 

(17) charitable contributions; 

(18) costs related to excessive or unnecessary levels 
of care; 

(19) interest associated with Medicaid overpayment 
repayment plans agreed to by both the provider 
and the Division of Medical Assistance; 

(20) costs related to frivolous appeals; 

(21) costs resulting from provider negligence; 

(22) costs related to any illegal activity; 

(23) costs disallowed on the associated tax return by 
the Internal Revenue Service or the North Caro- 
lina Department of Revenue, unless specifically 
allowable under this plan; 

(24) promotional items designed to promote the 
provider's public image; 

(25) costs associated with the interests of provider 
shareholders and not direct care related; 

(26) costs related to client care incurred in prior 
years, unless specific approval acquired from the 
Division of Medical Assistance; 

(27) country club dues. 

(t) Providers shall use a competitive bidding process in 
order to purchase or lease vehicles. 

(1) Providers shall explore cost differentials between 
leasing and purchasing of vehicles and shall 
choose the least expensive alternative. 

(2) Daily logs detailing the use of vehicles shall be 
maintained by the provider. 

(u) Purchase of services, major renovations, capital 
equipment, and supplies that exceed five thousand dollars 
($5,000) annually per facility shall be reasonably made 
consistent with the prudent buyer provisions of the HCFA- 
15. 

(v) Reasonable costs associated with self-insurance 
programs are allowable, as determined by the Division of 
Medical Assistance. All material facts related to said 
programs shall be disclosed to the Division of Medical 
Assistance. Failure to disclose may result in the disallow- 
ance of said costs. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 C.F.R. 
447, Subpart C. 

.0308 RATE APPEALS 

(a) The Division of Medical Assistance shall consider 
only the following appeals for adjustment to the rates which 
would result in an annual rate increase to the provider from 
the Medicaid Program of one thousand dollars ($1,000) or 



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May 15, 1995 



244 



PROPOSED RULES 



more. 

(1) Appeals because of changes in the information 
used to calculate a facility's prospective rate. 

(2) Appeals for significant increases or decreases in 
a facility's overall base period operating costs 
due to, but not limited to, implementation of 
new programs, changes in staff or service, 
changes in the characteristics or number of 
clients, changes in a financing agreement, capital 
renovations, expansions or replacements which 
have been either mandated or approved by the 
Division of Medical Assistance and, except in 
life-threatening situations, approved in advance 
by the applicable State agencies. 

(3) In order for said changes to be considered, they 
shall be consistent with all of the provisions of 
this plan. 

(4) Upon proper notification to the provider in 
writing, the Division of Medical Assistance may 
instigate a proceeding to reduce the provider's 
rates. A rate reduction proceeding may be 
initiated upon the determination of just cause by 
the Division of Medical Assistance. Grounds 
for just cause may include, but are not limited 
to, the following: 

(A) The provider has achieved material over col- 
lections of Medicaid funds derived from the 
prospective rate being greater than reasonable 
Medicaid costs. 

(B) Changes in Federal or State laws or regula- 
tions resulting in material operational cost 
savings. 

(C) Material changes in client profile resulting in 
the need for less costly services. 

(D) The burden of proof shall be on the Division 
of Medical Assistance to prove the need for 
said rate reduction. 

(5) In determining a fair and reasonable rate under 
appeal, the Division of Medical Assistance shall 
take into consideration all funds available to the 
provider from the Medicaid program and patient 
liability. Providers are expected to utilize all 
available funds to provide the services that their 
clients need. 

(6) Reasonable occupancy factors, as established by 
the Division of Medical Assistance, shall be 
utilized in establishing fair and reasonable rates 
in the appeal process. 

(7) Prospective rates determined under the rate 
appeal mechanism may be applied retroactively 
to the later of the beginning of the rate year in 
which said appeal was filed, or the date of 
certification of the related facility, or the effec- 
tive date during the facility's current rate year of 
the item(s) that caused the need for the change 
in rates. 

(8) The Division of Medical Assistance shall not pay 



interest on the final dollar settlement resulting 
from the retroactive impact of any rate appeals. 

(b) Notification of appeal: 

(1) In order to appeal a rate the facility shall send to 
the Division of Medical Assistance an appeal 
application in writing e ith e r within 60 days ef 
the facility r s e e iving the rat e computation or 
within 60 days of tho beginning of the rate 
period in question subsequent to the proposed 
effective date of the appeal rate . 

(2) The appeal application shall set forth the basis 
for the appeal and the issues of fact. Appropri- 
ate documentation shall accompany the applica- 
tion and the Division of Medical Assistance may 
request in writing such additional documentation 
as it deems necessary. 

(c) The burden of proof on appeal shall be on the facility 
to present clear and convincing evidence to demonstrate the 
rate requested in the appeal is necessary to ensure efficient 
and economical operation, and meets the criteria of this 
Rule. 

(d) There shall be a written notification by the Division 
of Medical Assistance of the final decision on the facility's 
rate appeal. However, at no point in the appeal process 
shall the facility have a right to an interim report of any 
determinations made by any of the parties to the appeal. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 C.F.R. 
447, Subpart C. 

.0309 AUDITS 

(a) Each facility shall maintain the statistical and financial 
records which formed the basis of the reports required by 
this Rule and submitted to the Division of Medical Assis- 
tance for five years from the date on which the reports were 
submitted or due, whichever is later, or for such longer 
periods as may be required under State or Federal law. 
Each cost report shall be verified by the state agency or its 
representative for completeness, accuracy, and reasonable- 
ness through a desk audit. Field audits shall be performed 
as required. When a combined cost report is filed under 
this plan, only the combined cost report is subject to desk 
and field audit, unless the Division of Medical Assistance 
determines that the supporting individual facility cost reports 
need to be audited. 

fb) All such records shall be subject to audit for a period 
of five years from the later of the date on which all required 
reports were filed with the Division of Medical Assistance 
or the date on which such reports were due. 

(1) Desk or field audits shall be conducted by the 
Division of Medical Assistance, its designated 
contract auditors, or other governmental agen- 
cies at a time and place and in a manner deter- 
mined by said governmental agencies. 

(2) The audits may be performed on any financial or 
statistical records required to be maintained. 

(3) Any findings of a described audit of this Rule 



245 



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May 15, 1995 



10:4 



PROPOSED RULES 



shall constitute grounds for recoupment at the 
discretion of the Division of Medical Assistance, 
provided that such audit finding relates to the 
allowable costs, 
(c) All filed cost reports shall be desk audited and 
tentative settlements made in accordance with the provisions 
of this plan. This settlement is issued within 180 days of 
the date the cost report was filed or within 272 days of the 
end of the June 30 fiscal year reflected in the cost report, 
whichever is later. The state may elect to perform field 
audits on any filed cost reports within three years of the date 
of filing and issue a final settlement on a time schedule that 
conforms to Federal law and regulation. If the state decides 
not to field audit a facility a final reimbursement notice may 
be issued based on the desk audited settlement. The state 
may reopen and field audit any cost report after the final 
settlement notice in order to comply with Federal law and 
regulation or to enforce laws and regulations prohibiting 
abuse of the Medicaid Program and particularly the provi- 
sions of this reimbursement plan. Those changes to the 
Payment for Services Prospective - Reimbursement Plan for 
ICF MR Faoilitioo will b e com e e ffectiv e wh e n th e H e alth 
Care Finanoing Adminiotration, U.S. D e partment Health and 
Human Services, approves amendment submitted to HCFA 
by the Director of the Division of Medical Assistance on or 
about July 1, 1993 as ffllA 93 12, wh e r e in th e Dir e otor 
propos e s am e ndmonto of th e Stat e Plan to amend Payment 
for Services — Prospective Reimbursement Plan for ICF MR 
Facilities. 

(1) These changes to the Payment for Services 
Prospective Reimbursement Plan for ICF-MR 
Facilities will become effective when the Health 
Care Financing Administration, U.S. Depart- 
ment of Health and Human Services, a pproves 
amendment submitted to HCFA by the Director 
of the Division of Medical Assistance on or 
about July 1, 1995 as #MA 95-03, wherein the 
Director proposes amendments of the State Plan 
to amend Payment for Services ; Prospective 
Reimbursement Plan for ICF-MR Facilities. 



Reason for Proposed Action: Establishes criteria to be in 
compliance with G.S. 58-33-130(d)(5). 

Comment Procedures: Written comments may be sent to 
George Brown at 430 N. Salisbury Street, Raleigh, NC 
27611. Oral presentations may be made at the public 
hearing. Anyone having questions should call George 
Brown at (919) 733-7487. 

Fiscal Note: 77715- Rule does not affect the expenditures or 
revenues of local government or state funds. 

CHAPTER 6 - AGENT SERVICES DIVISION 

SUBCHAPTER 6A - AGENT SERVICES DIVISION 

SECTION .0800 - CONTINUING EDUCATION 

.0812 SPECIAL CASES 

(a) In addition to the courses in 11 NCAC 6 A .0803, the 
Commissioner may prepare courses to address and remedy 
deficiencies in licensee professional performance or conduct 
detected by the Commissioner through analyses of consumer 
complaints or from Departmental audits or examinations of 
insurance companies, licensees, or insurance agencies or 
brokerages. 

(b) The Commissioner may require such courses for 
specific insurance companies, licensees in certain geographic 
territories, or licensees in general, depending on the types 
of complaints or the nature of the examination or audit 
findings. 

(c) The Commissioner may require individual licensees to 
remedial or rehabilitative courses because of complaints or 
examination or audit findings: 

(1) showing a pattern of irregularities in profes- 
sional performance or conduct; or 
£2} resulting in the finding of civil violations. 

Statutory Authority G.S. 58-2-40; 58-33-130. 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 C.F.R. 
447, Subpart C. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 



TITLE 11 - DEPARTMENT OF INSURANCE 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Insurance intends to adopt rule cited as 11 NCAC 6A .0812. 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Environmental Management Com- 
mission (EMC) - DEHNR intends to amend rule cited as 
15 A NCAC 2B .0304. 

Proposed Effective Date: January 1, 1996. 



Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 10:00 a.m. on June 
5, 1995 at the Third Floor Hearing Room, Dobbs Building, 
430 N. Salisbury Street, Raleigh, NC 27611. 



Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): Any person 
may request that the Environmental Management Commis- 
sion conduct a public hearing on the proposed reclassifica- 
tion by submitting a written request for a public hearing, 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



246 



PROPOSED RULES 



postmarked no later than May 30, 1995, to Steve Zoufaly, 
Division of Environmental Management, Water Quality 
Section, P.O. Box 29535, Raleigh, NC 27626-0535. 

Reason for Proposed Action: Stokely Hollow is a small 
stream located in Madison County. The stream is currently 
classified as WS-I1 (water supply) since it was believed that 
this was a source of drinking water for the Town of Hot 
Springs. However, it has come to our attention that Stokely 
Hollow is not used as a raw drinking water source. The 
proposal is to remove the current WS-Il classification and 
apply a C classification. This action would remove the 
requirement that Madison County adopt and implement a 
drinking water supply protection program for Stokely 
Hollow. In addition, the prohibition for new wastewater 
discliargers would no longer be applicable as implemented 
by DEM. 

Comment Procedures: All persons interested in the pro- 
posed reclassification are encouraged to submit written 
comments. Comments must be postmarked by June 14, 
1995, and submitted to Steve Zoufaly, Division of Environ- 
mental Management, Water Quality Section, P.O. Box 
29535, Raleigh, NC 27626-0535. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state funds. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSIFICATIONS 

.0304 FRENCH BROAD RIVER BASIN 

(a) Places where the schedules may be inspected: 
(1) Clerk of Court: 

Avery County 
Buncombe County 
Haywood County 
Henderson County 
Madison County 
Mitchell County 
Transylvania County 
Yancey County 
(2) North Carolina Department of Environment, 
Health, and Natural Resources 
Asheville Regional Office 
Interchange Building 
59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering Tennessee 
will be classified "B." 

(c) The French Broad River Basin Schedule of Classifica- 
tions and Water Quality Standards was amended effective: 



(1) September 22, 1976; 

(2) March 1, 1977; 

(3) August 12, 1979; 

(4) April 1, 1983; 

(5) August 1, 1984; 

(6) August 1, 1985; 

(7) February 1, 1986; 

(8) May 1, 1987; 

(9) March 1, 1989; 

(10) October 1, 1989; 

(11) January 1, 1990; 

(12) August 1, 1990; 

(13) August 3, 1992; 

(14) October 1, 1993. 

(d) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective March 1, 1989 as follows: 

(1) Cataloochee Creek (Index No. 5-41) and all 
tributary waters were reclassified from Class 
C-trout and Class C to Class C-trout ORW and 
Class C ORW. 

(2) South Fork Mills River (Index No. 6-54-3) 
down to Queen Creek and all tributaries were 
reclassified from Class WS-I and Class 
WS-III-trout to Class WS-I ORW and Class 
WS-III-trout ORW. 

(e) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective October 1, 1989 as follows: Cane River (Index 
No. 7-3) from source to Bowlens Creek and all tributaries 
were reclassified from Class C trout and Class C to Class 
WS-III trout and Class WS-ITI. 

(f) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective January 1, 1990 as follows: North Toe River 
(Index No. 7-2) from source to Cathis Creek (Christ 
Branch) and all tributaries were reclassified from Class C 
trout and Class C to Class WS-III trout and Class WS-III. 

(g) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective August 3. 1992 with the reclassification of all 
water supply waters (waters with a primary classification of 
WS-I, WS-D or WS-III). These waters were reclassified to 
WS-I, WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 2B 
.0100, .0200 and .0300) which became effective on August 
3, 1992. In some cases, streams with primary classifica- 
tions other than WS were reclassified to a WS classification 
due to their proximity and linkage to water supply waters. 
In other cases, waters were reclassified from a WS classifi- 
cation to an alternate appropriate primary classification after 
being identified as downstream of a water supply intake or 
identified as not being used for water supply purposes. 

(h) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective October 1, 1993 as follows: Reasonover Creek 
[Index No. 6-38- 14-( 1 )] from source to Reasonover Lake 



247 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



Dam and all tributaries were reclassified from Class B Trout 
to Class WS-V and B Trout, and Reasonover Creek [Index 
No. 6-38-14-(4)] from Reasonover Lake Dam to Lake Julia 
Dam and all tributaries were reclassified from Class C Trout 
to Class WS-V Trout. 

(i) The Schedule of Classifications and Water Quality 
Standards for the French Broad River Basin was amended 
effective January J^ 1996 as follows: Stokely Hollow 
rindex Numbers 6-121, 5-(l) and 6-121. 5-(2)l from source 
to mouth of French Broad River has been reclassified from 
Class WS-II and Class WS-II CA to Class C. 

Statutory Authority G.S. 143-214.1; 143-215.1; 

143-215. 3(a)(1). 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Environmental Management Com- 
mission (EMC) - DEHNR intends to amend rule cited as 
15 A NCAC2B .0316. 

Proposed Effective Date: January 1, 1996. 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): Any person 
may request that the Environmental Management Commis- 
sion conduct a public hearing on the proposed reclassifica- 
tion by submitting a written request for a public hearing, 
postmarked no later than May 30, 1995, to Steve Zoufaly, 
Division of Environmental Management, Water Quality 
Section, P.O. Box 29535, Raleigh, NC 27626-0535. 

Reason for Proposed Action: The City of Washington, 
Beaufort County, requested the reclassification of Tranters 
Creek from its current water supply classification of WS-IV 
CA (Critical Area) and WS-TV. The City no longer uses 
Tranters Creek as a raw water supply source and has 
converted to groundwater (wells). The proposal would 
remove the WS-IV classification and consider the watershed 
for a WS-V or C classification. In either case the local 
governments having land use jurisdiction within the water- 
shed would not be required to adopt and implement land use 
requirements for drinking water supply protection. There 
are no categorical prohibitions on wastewater discharge 
permits for either a WS-V or C classification. 

Comment Procedures: All persons interested in the pro- 
posed reclassification are encouraged to submit written 
comments. Comments must be postmarked by June 14, 
1995, and submitted to Steve Zoufaly, Division of Environ- 
mental Management, Water Quality Section, P.O. Box 
29535, Raleigh, NC 27626-0535. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state funds. 



SECTION .0300 - ASSIGNMENT OF STREAM 
CLASSmCATIONS 

.0316 TAR-PAMLICO RIVER BASIN 

(a) Places where the schedule may be inspected: 

(1) Clerk of Court: 
Beaufort County 
Dare County 
Edgecombe County 
Franklin County 
Granville County 
Halifax County 
Hyde County 
Martin County 
Nash County 
Pamlico County 
Person County 
Pitt County 
Vance County 
Warren County 
Washington County 
Wilson County 

(2) North Carolina Department of Environment, 
Health, and Natural Resources: 

(A) Raleigh Regional Office 
3800 Barrett Drive 
Raleigh, North Carolina 

(B) Washington Regional Office 
1424 Carolina Avenue 
Washington, North Carolina 

(b) Unnamed Streams. All drainage canals not noted in 
the schedule are classified "C Sw," except the main drain- 
age canals to Pamlico Sound and its bays which will be 
classified "SC." 

(c) The Tar-Pamlico River Basin Schedule of Classifica- 
tion and Water Quality Standards was amended effective: 

(1) March 1, 1977; 

(2) November 1, 1978; 

(3) June 8, 1980; 

(4) October 1, 1983; 

(5) June 1, 1984; 

(6) August 1, 1985; 

(7) February 1, 1986; 

(8) August 1, 1988; 

(9) January 1, 1990; 

(10) August 1, 1990; 

(11) August 3, 1992; 

(12) April 1, 1994. 

(d) The Schedule of Classifications and Water Quality 
Standards for the Tar-Pamlico River Basin has been 
amended effective August 1, 1988 as follows: 

(1) Tar River (Index No. 28-94) from a point 1.2 
miles downstream of Broad Run to the upstream 
side of Tranters Creek from Class C to Class B. 

(e) The Schedule of Classifications and Water Quality 
Standards for the Tar-Pamlico River Basin has been 
amended effective January 1, 1990 by the reclassification of 



10:4 



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May 15, 1995 



248 



PROPOSED RULES 



Pamlico River and Pamlico Sound [Index No. 29-(27)] 
which includes all waters within a line beginning at Juniper 
Bay Point and running due south to Lat. 35° 18' 00", long. 
76° 13" 20", thence due west to lat. 35° 18" 00", long 76° 
20' 00", thence northwest to Shell Point and including Shell 
Bay, Swanquarter and Juniper Bays and their tributaries, but 
excluding the Blowout, Hydeland Canal, Juniper Canal and 
Quarter Canal were reclassified from Class SA and SC to 
SA ORW and SC ORW. 

(f) The Schedule of Classifications and Water Quality- 
Standards for the Tar-Pamlico River Basin has been 
amended effective January 1, 1990 by adding the supple- 
mental classification NSW (Nutrient Sensitive Waters) to all 
waters in the basin from source to a line across Pamlico 
River from Roos Point to Persimmon Tree Point. 

(2) The Schedule of Classifications and Water Quality- 
Standards for the Tar-Pamlico River Basin was amended 
effective August 3, 1992 with the reclassification of all 
water supply waters (waters with a primary classification of 
WS-I. WS-II or WS-DT). These waters were reclassified to 
WS-I. WS-II, WS-m, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 2B 
.0100. .0200 and .0300) which became effective on August 
3. 1992. In some cases, streams with primary classifica- 
tions other than WS were reclassified to a WS classification 
due to their proximity and linkage to water supply waters. 
In other cases, waters were reclassified from a WS classifi- 
cation to an alternate appropriate primary classification after 
being identified as downstream of a water supply intake or 
identified as not being used for water supply purposes. 

(h) The Schedule of Classifications and Water Quality 
Standards for the Tar-Pamlico River Basin was amended 
effective April 1, 1994 with the reclassification of Blounts 
Creek from Herring Run to Blounts Bay [Index No. 
29-9-H3)] from Class SC NSW to Class SB NSW. 

(jj The Schedule of Classifications and Water Quality 
Standards for the Tar-Pamlico River Basin was amended 
effective January _L 1996 as follows: 
Option Number I 
(_Q Tranters Creek [Index Numbers 28-103- (4.5), 
28-103- (13.5). 28-103- (14.5) and 
28-103-( 16.5)1 from a point 1.5 miles upstream 
of Turkey Swamp to the City of Washington's 
former auxiliary water supply intake, including 
tributaries, from Class WS-IV Sw NSW and 
Class WS-IV CA Sw NSW to Class WS-V Sw 
NSW. 

Option Number 2 
(2J Tranters Creek [Index Numbers 28-103- (4.5), 
28-103- (13.5). 28-103- (14.5) and 
28-103-(16.5)l from a point 1 .5 miles upstream 
of Turkey Swamp to the City of Washington's 
former auxiliary water supply intake, including 
tributaries, from Class WS-IV Sw NSW and 
Class WS-IV CA Sw NSW to Class C Sw 
NSW. 



Statutory Authority G.S. 143-214.1; 143-215.1; 

143-215. 3(a)(1). 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Wildlife Resources Commission 
intends to amend rule cited as 15A NCAC 10B .0202 with 
changes from the proposed text noticed in the Register 
Volume 9, Issue 18, pages 1427-1430 and Volume 10, Issue 
1 , pages 26-35. 

Proposed Effective Date: August 1 , 1995. 

Reason for Proposed Action: To regulate the harvest of 
bear by setting seasons in Craven and Jones Counties. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, 
the record of hearing will be open for receipt of written 
comments from May 15, 1995 through June 15, 1995. Such 
written comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury Street, 
Raleigh. N.C. 27604-1188. 

Editor's Note: An agency may not adopt a rule that differs 
substantially from the text of a proposed rule published in 
the Register, unless the agency publishes the text of the 
proposed different rule and accepts comments on the new- 
text for at least 30 days after the publication of the new text. 

Fiscal Note: Tliis Rule does not affect the expenditures or 
revenues of local government or state funds. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10B - HUNTING AND 
TRAPPING 

SECTION .0200 - HUNTING 

.0202 BEAR 

(a) Open Seasons shall be from the: 

(1) Monday on or nearest October 15 to the Satur- 
day before Thanksgiving and the third Monday 
after Thanksgiving to January 1 in and west of 
the boundary formed by NC 16 from the Vir- 
ginia State line to Wilkesboro and NC 18 from 
Wilkesboro to the South Carolina State line. 

(2) Second Monday in November to the following 
Saturday and the third Monday after Thanksgiv- 
ing to the following Wednesday in all of Beau- 
fort, Camden, Craven, Dare. Gates, Hyde. 
Jone3 , Pamlico, Pasquotank, Tyrrell, and Wash- 
ington Counti e s: counties: and in the following 
parts of counties: that part of 



249 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



) 



Bertie^ Count)' that part southeast of US 17 T and 
that part of 

Chowani Count)' that part north of a line formed 
by SR 1002, SR 1222 and SR 1221 . and in 
Craven: except Game Lands 
Currituck! Count)': except Knotts Island and the 
Outer Banks that part w e nt of the Intraooactnl 
waterway that is south or west of a lino formed 
by Highway 31 to Silgo, Highway 168 through 
Baroo, then Highway 15 8 to the Intraooastal 
waterway; aloo that part oaot of th e Intraooastnl 
waterway and west of a lino formed through the - 
contor of Currituck Sound and North Landing 
Riv e r- 
Hertford: that part east of NC 45 
Martin: that part east of US 17 
Jones: except Game Lands. 

(3) Second Monday in November to January 1 in all 
of Bladen, Carteret, Duplin, New Hanover, 
Onslow and Pender Countios; counties and in the 
following parts of counties: 

in that part of Cumberland^ Count)' that part 
south of NC 24 and east of the Cape Fear Rivert 

and in that part of Sampson^ county that part 
south of NC 24. 

(4) Second Monday in December to January 1 in 
Brunswick and Columbus Counties. 

(b) No Open Season. There is no open season in any 
area not included in Paragraph (a) of this Rule or in those 
parts of counties included in the following posted bear 
sanctuaries: 

Avery, Burke and Caldwell Countios coun- 
ties —Daniel Boone bear sanctuary 
Beaufort, Bertie and Washington Counti e s 
counties —Bachelor Bay bear sanctuary 
Beaufort and Pamlico Countios counties — Gum 
Swamp bear sanctuary 

Bladen County-Suggs Mill Pond bear sanctuary 
Brunswick County— Green Swamp bear sanctuary 
Buncombe, Haywood, Henderson and 
Transylvania Counti e s counties — Pisgah bear 
sanctuary 

Carteret, Craven and Jones Countioa coun- 
ties — Croatan bear sanctuary 
Clay County— Fires Creek bear sanctuary 
Currituck County— North River bear sanctuary 
Dare County— Bombing Range bear sanctuary 
Haywood County— Harmon Den bear sanctuary 
Haywood County— Sherwood bear sanctuary 
Hyde County— Gull Rock bear sanctuary 
Hyde County— Pungo River bear sanctuary 
Jackson County— Panthertown-Bonas Defeat bear 
sanctuary 

Jones and Onslow Counti e s counties — Hofmann 
bear sanctuary 
Macon County— Standing Indian bear sanctuary 



Macon County— Wayah bear sanctuary 
Madison County— Rich Mountain bear sanctuary 
McDowell and Yancey Countios counties — Mt. 
Mitchell bear sanctuary 

Mitchell and Yancey Countioa counties — Flat Top 
bear sanctuary 

Wilkes County— Thurmond Chatham bear sanctu- 
ary 

(c) Bag limits shall be: 

(1) daily, one; 

(2) possession, one; 

(3) season, one. 

(d) Kill Reports. The carcass of each bear shall be 
tagged and the kill reported as provided by 15A NCAC 10B 
.0113. 



Statutory Authority G.S. 
113-305. 



113-134; 113-291.2; 113-291.7; 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Wildlife Resources Commission 
intends to amend rule cited as 15 A NCAC 10D .0003. 

Proposed Effective Date: August 1, 1995. 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): A request 
for a public hearing must be in writing and submitted to 
Director's Office, 512 N. Salisbury Street, Raleigh, NC 
27604-1188 by May 30, 1995. 



Reason for Proposed Action: 

other activities on game lands. 



To regulate hunting and 



Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, 
the record of hearing will be open for receipt of written 
comments from May 15, 1995 through June 16, 1995. Such 
written comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state funds. 

SUBCHAPTER 10D - GAME LANDS 
REGULATIONS 

.0003 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while hunting on 
any designated game land shall be under the influence of 
alcohol or any narcotic drug, or fail to comply with special 
restrictions regarding the use of the Blue Ridge Parkway 
where it adjoins game lands listed in this Rule. 

(b) Traffic Requirements. No person shall park a vehicle 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



250 



PROPOSED RULES 



on game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to occupy, for 
the purpose of hunting, any tree stand or platform attached 
bv nails, screws, bolts or wire to a tree on any game land 
designated herein. This prohibition shall not apply to 
la2-screw steps or portable stands that are removed after use 
with no metal left remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed to 
hunting or limited to specific dates by this Chapter, hunting 
on game lands is permitted during the open season for the 
game or furbearing species being hunted. On managed 
waterfowl impoundments, hunters shall not enter the posted 
impoundment areas earlier than 4:00 a.m. on the permitted 
hunting dates, and hunting is prohibited after 1:00 p.m. on 
such hunting dates; decoys may not be set out prior to 4:00 
a.m. and must be removed by 3:00 p.m. each day. No 
person shall operate any vessel or vehicle powered by an 
internal combustion engine on a managed waterfowl im- 
poundment. 

No person shall attempt to obscure the sex or age of any 
bird or animal taken by severing the head or any other part 
thereof, or possess any bird or animal which has been so 
mutilated. 

N'o person shall place, or cause to be placed on any game 
land, salt, grain, fruit, or other foods without prior written 
authorization of the commission or its agent. A decision to 
grant or deny authorization shall be made based on the best 
management practices for the wildlife species in question. 

No person shall take or attempt to take any game birds or 
game animals attracted to such foods. 

No live wild animals or wild birds shall be removed from 
any game land. 

(e) Hunting Dates: For purposes of this Section "East- 
em" season refers to seasons set for those counties or parts 
of counties listed in 15A NCAC 10B .0203(b)(1)(A); 
"Central" season refers to seasons set for those counties or 
parts of counties listed in 15A NCAC 10B .0203(b)(1)(D); 
"Northwestern" season refers to seasons set for those 
counties or parts of counties listed in 15A NCAC 10B 
.0203(b)(1)(B); "Western" season refers to seasons set for 
those counties or parts of counties listed in 15A NCAC 10B 
.0203(b)(1)(C). 

(1) Doves may be taken on the following game 
lands and dove hunting is limited to Mondays. 
Wednesdays. Saturdays and to Thanksgiving, 
Christmas and New Year's Days within the 
federally-announced season: 

Guilford Count}'— Guilford Count}' Farm Game 

Land 

Lenoir County— Caswell Farm Game Land 

(2) Any game may be taken during the open seasons 
on the following game lands and hunting is 
limited to Mondays, Wednesdays. Saturdays and 
Thanksgiving. Christmas and New Year's Days. 
In addition, deer may be taken with bow and 
arrow on the opening da}' of the bow and arrow 



season for deer. Special hunts on other davs 
may also be set up for participants in the Dis- 
abled Sportsman Program. Raccoon and opos- 
sum hunting may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thursdays, and 
until midnight on Saturdays. Additional restric- 
tions apply as indicated in parentheses following 
specific designations: 
Ashe Count}— Carson Woods Game Land 
Bladen Count}— Bladen Lakes State Forest Game 
Lands (Handguns ma}' not be carried and. except 
for muzzle-loaders, rifles larger than .22 caliber 
rimfire may not be used or possessed. On the 
Breece Tract and the Single tan' Tract deer and 
bear may be taken only by still hunting. Deer 
of either sex ma}' be taken Mondays. Wednes- 
days, and Saturdays from the first Wednesday 
after Thanksgiving through the following 
Wednesday. Deer of either sex ma}' also be 
taken the Saturday preceding Eastern bow season 
with bow and arrow and the Friday preceding 
the Eastern muzzle-loading season with any legal 
weapon (with weapons exceptions described in 
this Paragraph) by participants in the Disabled 
Sportsman Program. Wild turkey hunting is by 
permit only.) 

Caswell Count}— Caswell Game Land— (Deer of 
either sex may also be taken the Friday preced- 
ing the Central muzzle-loading season by partici- 
pants in the Disabled Sportsman Program.) 
Catawba and Iredell Counties— Catawba Game 
Land (No deer may be taken from the tract 
known as Island Point and deer may be taken 
with bow and arrow only from the tract known 
as Molly's backbone.) 

Onslow Count}— White Oak River Impoundment 
Game Land (In addition to the dates above 
indicated, waterfowl may be taken on the open- 
ing and closing days of the applicable waterfowl 
seasons. ) 

Pender County— Holly Shelter Game Land (In 
addition to the dates above indicated, waterfowl 
ma}' be taken on the opening and closing days of 
the applicable waterfowl seasons. Deer of either 
sex may be taken on Mondays. Wednesdays, 
and Saturdays from the first Wednesday after 
Thanksgiving through the fourth Saturday after 
Thanksgiving.) Deer of either sex ma}' also be 
taken the Friday preceding the Eastern muzzle- 
loading season with any legal weapon and the 
Saturday preceding Eastern bow season with 
bow and arrow by participants in the Disabled 
Sportsman Program.) 

Richmond. Scotland and Moore Coun- 
ties—Sandhills Game Land (The regular gun 
season for deer consists of the open hunting 
dates from the second Monday before Thanks- 



251 



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May 15, 1995 



10:4 



PROPOSED RULES 



giving to the third Saturday after Thanksgiving 
except on the field trial grounds where the gun 
season is from the second Monday before 
Thanksgiving to the Saturday following Thanks- 
giving. Deer may be taken with bow and arrow 
on all open hunting dates during the bow and 
arrow season, as well as during the regular gun 
season. Deer may be taken with muzzle-loading 
firearms on Monday, Wednesday and Saturday 
of the second week before Thanksgiving week, 
and during the regular gun season. Either sex 
deer hunting with any legal weapon is permitted 
on all areas the Thursday and Friday prior to the 
muzzle-loading season described in this Para- 
graph for participants in the Disabled Sportsman 
Program. Except for the deer seasons above 
indicated and the managed either-sex permit 
hunts, the field trial grounds are closed to all 
hunting during the period October 22 to March 
31. In addition to the regular hunting days, 
waterfowl may be taken on the opening and 
closing days of the applicable waterfowl seasons. 
Wild turkey hunting is by permit only. Dove 
hunting on the field trial grounds will be prohib- 
ited from the second Sunday in September 
through the remainder of the hunting season.) 
Robeson County— Robeson Game Land 
Robeson County— Bullard and Branch Hunting 
Preserve Game Land 
Sampson County— Sampson Game Lands 
Stokes County— Sauratown Plantation Game 
Land 

Wayne County— Cherry Farm Game Land, the 
use of centerfire rifles and handguns is prohib- 
ited 

Yadkin County— Huntsville Community Farms 
Game Land 
(3) Any game may be taken on the following game 
lands during the open season, except that: 

(A) Bears may not be taken on lands designated 
and posted as bear sanctuaries; 

(B) Wild boar may not be taken with the use of 
dogs on such bear sanctuaries, and wild boar 
may be hunted only during the bow and arrow 
seasons, the muzzle-loading deer season and 
the regular gun season on male deer on bear 
sanctuaries; 

(C) On game lands open to deer hunting located in 
or west of the counties of Rockingham, 
Guilford, Randolph, Montgomery and Anson, 
the following rules apply to the use of dogs 
during the regular season for hunting deer with 
guns: 

(i) Except for the counties of Cherokee, Clay, 
Graham, Jackson, Macon, Madison, Polk, 
and Swain, game birds may be hunted 
with dogs. 



(ii) In the counties of Cherokee, Clay, Gra- 
ham, Jackson, Macon, Madison, Polk, and 
Swain, small game in season may be 
hunted with dogs on all game lands except 
on bear sanctuaries; 

(D) On Croatan, Jordan, and Shearon Harris Game 
Lands, and posted waterfowl impoundments on 
Goose Creek Game Lands, waterfowl may be 
taken only on Mondays, Wednesdays, Satur- 
days; on Thanksgiving, Christmas and New 
Year's Days; and on the opening and closing 
days of the applicable waterfowl seasons. 
After November 1, on the Pamlico Point, 
Campbell Creek, and Spring Creek impound- 
ments, located on the Goose Creek Game 
Lands, a special permit is required for hunting 
on opening and closing days of the duck sea- 
sons, Saturdays of the duck seasons, and on 
Thanksgiving and New Year's day; 

(E) On the posted waterfowl impoundments of 
Gull Rock Game Land hunting of any species 
of wildlife is limited to Mondays, Wednes- 
days, Saturdays; Thanksgiving, Christmas, and 
New Year's Days; and the opening and closing 
days of the applicable waterfowl seasons; 

(F) On bear sanctuaries in and west of Madison, 
Buncombe, Henderson and Polk Counties dogs 
may not be trained or allowed to run unleashed 
between March 1 and October 1 1 ; 

(G) On Anson, Chatham, Jordan, New Lake, Pee 
Dee River, Pungo River, Shearon Harris and 
Gull Rock Game Lands deer of either sex may 
be taken from the first Wednesday after 
Thanksgiving through the third Saturday after 
Thanksgiving. 

(H) On Burner-Falls of Neuse and Person Game 
Lands waterfowl may be taken only on Tues- 
days, Thursdays and Saturdays, Christmas and 
New Year's Days, and on the opening and 
closing days of the applicable waterfowl sea- 
sons; 
(I) On Alcoa southeast of NC 49, Angola Bay, 
Butner-Falls of Neuse, Goose Creek, Hofmann 
Forest, Sutton Lake and Uwharrie Game 
Lands deer of either sex may be taken from 
the first Wednesday after Thanksgiving 
through the following Saturday; 

(J) On Croatan and Neuse River Game Lands deer 
of either sex may be taken from the first 
Wednesday after Thanksgiving through the 
following Tuesday; 

(K) On Croatan Game Lands in Jones and Craven 
Counties bear season extends from the second 
Monday in November to the following Satur- 
day; 

(L) (K^Horseback riding is allowed on the Caswell 
and Thurmond Chatham game lands only 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



252 



PROPOSED RULES 



during June, July, and August and on Sundays 
during the remainder of the year except during 
open turkey and deer seasons. Horseback 
riding is allowed only on roads opened to 
vehicular traffic. Participants must obtain a 
game lands license prior to engaging in such 
activity; 

(M) (t)On the posted waterfowl impoundments on 
the Jordan and Butner-Falls of Neuse game 
lands a special permit is required for all water- 
fowl hunting. 

(N) (M)Additional restrictions or modifications 
apply as indicated in parentheses following 
specific designations: 

Alexander and Caldwell Counties— Brushy 
Mountains Game Lands 
Anson County— Anson Game Land 
Anson, Montgomery, Richmond and Stanly 
Counties— Pee Dee River Game Lands (Use of 
centerfire rifles prohibited in that portion in 
Anson and Richmond counties N. of US-74.) 
Ashe County— Elk Ridge Game Lands 
Ashe County— Cherokee Game Lands 
Ashe and Watauga Counties— Elk Knob Game 
Land 

Avery, Buncombe, Burke, Caldwell, 
Haywood, Henderson, Jackson, Madison, 
McDowell, Mitchell, Transylvania. Watauga 
and Yancey Counties— Pisgah Game Lands 
(Harmon Den and Sherwood Bear Sanctuaries 
in Haywood County are closed to hunting 
raccoon, opossum and wildcat. Training 
raccoon and opossum dogs is prohibited from 
March 1 to October 1 1 in that part of Madison 
Count}' north of the French Broad River, south 
of US 25-70 and west of SR 1319.) 
Bertie— Bertie Count}' Game Land 
Bertie, Halifax and Martin Counties— Roanoke 
River Wetlands (Hunting is by Permit only. 
Vehicles are prohibited on roads or trails 
except those operated on official Commission 
business or by permit holders.) 
Bertie and Washington Counties— Bachelor Bay 
Game Lands 

Beaufort and Pamlico Counties— Goose Creek 
Game Land 

Brunswick County— Green Swamp Game Land 
Burke and Cleveland Counties— South Moun- 
tains Game Lands 

Caldwell. Watauga and Wilkes Coun- 
ties— Yadkin Game Land 
Carteret. Craven and Jones Counties— Croatan 
Game Lands 

Chatham County— Chatham Game Land 
Chatham. Durham, Orange, and Wake Coun- 
ties—Jordan Game Lands (On areas posted as 
"archery zones" hunting is limited to bow and 



arrow. Horseback riding, including all equine 
species, is prohibited. Target shooting is 
prohibited.) 

Chatham and Wake Counties— Shearon Harris 
Game Land 

Cherokee, Clay, Graham, Jackson, Macon, 
Swain and Transylvania Counties— Nantahala 
Game Lands. Raccoon and opossum may be 
hunted only from sunset Friday until sunrise 
on Saturday and from sunset until 12:00 mid- 
night on Saturday on Fires Creek Bear Sanctu- 
ary in Clay County and in that part of Chero- 
kee County north of US 64 and NC 294, east 
of Persimmon Creek and Hiwassee Lake, 
south of Hiwassee Lake and west of Nottely 
River; in the same part of Cherokee Count}' 
dog training is prohibited from March 1 to 
October 11. It is unlawful to train dogs or 
allow dogs to run unleased on any game land 
in Graham County between March 1 and 
October 11. 

Chowan County— Chowan Game Land 
Cleveland County— Gardner-Webb Game Land 
Craven County—Neuse River Game Land 
Currituck County— North River Game Land 
Currituck County— Northwest River Marsh 
Game Land 

Dare County— Dare Game Land (No hunting 
on posted parts of bombing range. The use 
and training of dogs is prohibited from March 
1 through June 30.) 

Davidson, Davie, Montgomery. Rowan and 
Stanly Counties— Alcoa Game Land 
Davidson County— Linwood Game Land 
Davidson. Montgomery and Randolph Coun- 
ties— Uwharrie Game Land 
Duplin and Pender Counties— Angola Bay 
Game Land 

Durham, Granville and Wake Coun- 
ties— Butner-Falls of Neuse Game Land (On 
that part marked as the Penny Bend Rabbit 
Research Area no hunting is permitted. 
Horseback riding, including all equine species, 
is prohibited. Target shooting is prohibited.) 
Gates County— Chowan Swamp Game Land 
Henderson. Polk and Rutherford Coun- 
ties—Green River Game Lands 
Hyde County— Gull Rock Game Land 
Hyde County— Pungo River Game Land 
Hyde and Tyrrell Counties— New Lake Game 
Land 

Jones and Onslow Counties— Hofmann Forest 
Game Land 

Lee County— Lee Game Land 
McDowell and Rutherford Coun- 
ties— Dysartsville Game Lands 
Moore County— Moore Game Land 



253 



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May 15, 1995 



10:4 



PROPOSED RULES 



New Hanover County— Sutton Lake Game 
Land 

Pender County— Northeast Cape Fear Game 
Land 

Person County— Person Game Land 
Transylvania County— Toxaway Game Land 
(Deer of either sex may be taken with a bow 
and arrow on the Saturday prior to the first 
segment of the Western bow and arrow season 
by participants of the Disabled Sportsman 
Program.) 

Tyrrell and Washington Counties— Lantern 
Acres Game Land 

Vance County— Vance Game Land. (The use 
of dogs, centerfire rifles and handguns for 
hunting deer is prohibited on the Nutbush 
Peninsula tract of Vance Game Lands.) 
Wilkes County— Thurmond Chatham Game 
Land (Deer of either sex may be taken with 
bow and arrow on the Saturday prior to North- 
western bow and arrow season by participants 
of the Disabled Sportsman Program.) 

(4) Deer of either sex may be taken on the hunt 
dates indicated by holders of permits to partici- 
pate in managed hunts scheduled and conducted 
in accordance with this Subparagraph on the 
game lands or portions of game lands included 
in the following schedule: 

Thursday and Friday of the week before Thanks- 
giving Week: 

Sandhills east of US 1 

Sandhills west of US 1 
Application forms for permits to participate in 
managed deer hunts on game lands, together 
with pertinent information and instructions, may 
be obtained from hunting and fishing license 
agents and from the Wildlife Resources Com- 
mission. Completed applications must be re- 
ceived by the Commission not later than the first 
day of September next preceding the dates of 
hunt. Permits are issued by random computer 
selection, are mailed to the permittees prior to 
the hunt, and are nontransferable. A hunter 
making a kill must tag the deer and report the 
kill to a wildlife cooperator agent. 

(5) The following game land and refuges are closed 
to all hunting except to those individuals who 
have obtained a valid and current permit from 
the Wildlife Resources Commission: 

Bertie, Halifax and Martin Counties— 

Roanoke River Wetlands; 

Bertie County— Roanoke River National 

Wildlife Refuge. 

Dare County— Dare Game Lands (Those 

parts of bombing range posted against 

hunting) 

Davie—Hunting Creek Swamp Waterfowl 



Refuge 

Gaston, Lincoln and Mecklenburg Coun- 
ties—Cowan's Ford Waterfowl Refuge. 

Statutory Authority G.S. 113-134; 113-264; 113-291.2; 
113-291.5; 113-305. 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rule cited as 19 A NCAC 2D 
.0801. 

Proposed Effective Date: September 1, 1995. 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): A demand 
for a public hearing must be made in writing and mailed to 
Emily Lee, N.C. DOT, PO Box 25201, Raleigh, NC 27611. 
The demand must be received within 15 days of this Notice. 

Reason for Proposed Action: The changes reflect a 
reorganization in the Division of Highways and the necessity 
for bidders to requalify biennially rather than annually. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rule by mailing the 
comments to Emily Lee, N.C. DOT, PO Box 25201, Ra- 
leigh, NC 27611 , within 30 days after the proposed rule is 
published or until the date of any public hearing held on the 
proposed rule, whichever is longer. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state funds. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY OPERATIONS 

SECTION ,0800 - PREQUALIFICATION: 
ADVERTISING AND BIDDING REGULATIONS 

.0801 PREQUALIFYING TO BID: 
REQUALIFICATION 

(a) In order to ensure that contracts are awarded to 
responsible bidders, prospective bidders shall prequalify 
with the Department. The requirements for prequalification 
are as follows: 

(1) Applicant must submit a completed NCDOT 
Experience Questionnaire along with any addi- 
tional supporting information requested by the 
Department. 

(2) Applicant must demonstrate that he has sufficient 
ability and experience in related highway con- 



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254 



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struction projects to perform the work specified 
in NCDOT contracts, including the type and 
dollar value of previous contracts. 

(3) Applicant must demonstrate a history of success- 
ful performance and completion of projects in a 
timely manner, subject to contractual time 
adjustments. 

(4) Applicant must demonstrate the financial ability 
to furnish bonds as specified in G.S. 44A-26. 

(5) Applicant must demonstrate sufficient available 
equipment to perform highway construction 
contracts in a timely manner. 

(6) Applicant must demonstrate sufficient available 
experienced personnel to perform highway 
construction contracts. The identities and quali- 
fications of both management and labor work 
force shall be provided. 

(7) Applicant must provide names and addresses of 
persons for whom the firm has performed re- 
lated type work. Responses from the references 
must be on Department of Transportation forms 
and must be received by the Department prior to 
evaluating the request for prequalification. 

(8) Applicant must provide any information re- 
quested concerning the corporate and operational 
management structure of the company, the 
identity of persons or entities owning stock or 
other equity interest in the company, and the 
relationship between the applicant and any other 
company prequalified with the Department or 
applying for prequalification. 

Any prospective bidder, not prequalified, may request a 
NCDOT Experience Questionnaire form from the State 
Highway Construction and Mat e rials Contractual Sen-ices 
Engineer, Division of Highways, Department of Transporta- 
tion. P.O. Box 25201, Raleigh, NC 27611. The Experience 
Questionnaire form must be completed in its entirety and 
signed by an officer of the firm; the officer's signature shall 
be notarized. In addition to submitting the Experience 
Questionnaire form as set forth in this Rule, the prospective 
bidder shall submit supporting information in a format of 
his'her choosing to address the requirements listed in this 
Rule. All required statements and documents shall be filed 
with the State Highway Construction and Materials Engineer 
by the prospective bidder at least two weeks prior to the 
date of opening of bids. A bid shall not be opened unless 
all prequalification requirements have been met by the 
bidder and have been found to be acceptable by the Chief 
Engineer-Operations. 

(b) Upon a determination by the Department that all 
prequalification requirements have been met, the applicant 
shall be assigned a Prequalification Number. This 
Prequalification Number shall thereafter be assigned to all 
applicants for prequalification or requalification which the 
Department determines are under sufficient common 
ownership and management control to warrant 
prequalification as a single entity. This determination by the 



Department shall be based on the information submitted with 
the Experience Questionnaire and any other information 
obtained by the Department. 

(c) Bidders shall comply with all applicable laws regulat- 
ing the practice of general contracting as contained in G.S. 
87. 

(d) All bidders must requalify annually biennially . To 
requalify, the prospective bidder must submit a completed 
Experience Questionnaire form, acceptable to the State 
Highway Construction and Materials Engineer, on or before 
the anniversary date of the original prequalification. 
Experience Questionnaire forms shall be furnished approxi- 
mately 30 days prior to the anniversary date and must be 
completed and executed in the same manner as the original 
form. The Experience Questionnaire form shall be submit- 
ted to the State Contractual Services Engineer. 

Statutory Authority G.S. 136-18(1); 136-28.1; 136-44.1; 
136-45; 143B-350(f). 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 8 - BOARD OF CERTIFIED PUBLIC 
ACCOUNTANT EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Certified Public Accountant Examiners intends to amend 
rules cited as 21 NCAC 8F .0105; 8G .0401; 8J .0005, 
.0008; 8M .0102, .0104, .0306, .0401; 8N .0203, .0302, 
.0307; and adopt 21 NCAC 8F .0113. 

Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 9:00 a.m. on June 
19, 1995 at the NC State Board of CPA Examiners, 1101 
Oberlin Road, Suite 104, Raleigh. NC 27605. 

Reason for Proposed Action: 

21 NCAC 8F .0105 - Establishes the requirements for re- 
exam candidates affected by statute change. 
21 NCAC 8F .0113 - Establishes the time frame for request 
for a review of an examination. 

21 NCAC 8G .0401 - Clarifies a reference within the rule. 
21 NCAC 8J .0005 - Changes a reference within the rule. 
21 NCAC 8J .0008 - Clarifies the types of information to be 
included with firm registration. 

21 NCAC 8M .0102 - Clarifies the annual SQR registration 
requirements for firms. 

21 NCAC 8M .0104 - Updates the list of quality review 
programs required by the Board. 

21 NCAC 8M .0306 - Clarifies the type of information to be 
included with an SQR report. 

21 NCAC 8M .0401 - Clarifies the types of information to 
be reviewed by the SQR Committee. 
21 NCAC 8N .0203 - Sets out the types of conduct which 



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are considered discreditable. 

21 NCAC 8N .0302 - Clarifies the requirements of a CPA 

providing ancillary practice services. 

21 NCAC 8N .0307 - Clarifies the requirements for firm 

names and style of practice. 

Comment Procedures: Any person interested in these rules 
may present written comments to the Board office no later 
than 8:30 a.m. on June 19, 1995. Anyone planning to 
attend or present oral comments relevant to the action 
proposed at the public rule-making hearing should notify the 
receptionist at the Board office by noon on June 2, 1995. 
Those individuals wishing to make oral comments should 
indicate which proposals they are speaking to and whether 
they will speak in favor or against the proposal. Anyone 
speaking on the proposals will be limited to a total of 10 
minutes. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of local government or state funds. 

SUBCHAPTER 8F - REQUIREMENTS FOR 

CERTIFIED PUBLIC ACCOUNTANT 

EXAMINATION AND CERTIFICATE 

APPLICANTS 

SECTION .0100 - GENERAL PROVISIONS 

.0105 CONDITIONING REQUIREMENTS 

(a) Passing Grades. A candidate shall be required to pass 
all sections of the examination with a grade of 75 or higher. 

(b) Conditional Credit. If a candidate does not pass all of 
the sections in one sitting, conditional credit can be retained 
for passed sections subject to the following: 

(1) No conditional credit can be retained until the 
candidate has first passed at least two sections in 
one sitting; 

(2) To receive conditional credit for any section the 
candidate must sit for and make a grade of at 
least 50 on all unpassed sections; and 

(3) The conditional credit is good through the six 
succeeding times the exam is offered by the 
Board. 

(c) Military Service. A candidate who was or is in active 
military service after receiving conditional credit shall have 
only those exams for which that candidate applied and was 
approved during active military service counted as succeed- 
ing examinations. 

(d) Section Equivalency. For purposes of conditional 
credit, the following pre- and post-May 1994 exam sections 
are equivalent: 

(1) accounting practice equals accounting and re- 
porting; 

(2) accounting theory equals financial accounting 
and reporting; 

(3) auditing equals auditing; and 

(4) business law equals business law and profes- 



sional responsibilities. 
(e) A candidate who has conditional credit prior to 
January Xi 1997, may continue to apply to sit for the 
examination as long as the conditional credit is valid. A 
candidate who no longer has valid conditional credit after 
January J^ 1997, will be required to meet all education 
requirements in effect at the time of their subsequent 
application. 

Statutory Authority G.S. 93-12(3); 93-12(5). 

.0113 CANDIDATE'S REQUEST TO REVIEW 
UNIFORM CPA EXAMINATION 

The Board will allow a North Carolina candidate to 
request a review of the Uniform CPA Examination. The 
request for a review must be made no later than 60 days 
after the uniform national grade release date of the examina- 
tion in question. 

Statutory Authority G.S. 93-12(3). 

SUBCHAPTER 8G - CONTINUING PROFESSIONAL 
EDUCATION (CPE) 

SECTION .0400 - CPE REQUIREMENTS 

.0401 CPE REQUIREMENTS FOR CPAS 

(a) In order for a CPA to receive CPE credit for a 
course: 

(1) the CPA must attend or complete the course; 

(2) the course must meet the requirements set out in 
21 NCAC 8G .0404(a) or (d); and 

(3) the course must increase the professional compe- 
tency of the CPA. 

(b) The Board approves sponsors of CPE courses and not 
particular courses. A CPE course provided by an approved 
sponsor is presumed to meet the CPE requirements set forth 
in 21 NCAC 8G .0404(a) if the sponsor has indicated that 
the course meets those requirements. However, it is up to 
the individual CPAs attending the course and desiring to 
claim CPE credit for it to assess whether it increases their 
professional competency. 

(c) A course that increases the professional competency 
of a CPA is a course in an area of accounting in which the 
CPA practices or is planning to practice in the near future, 
or in the area of professional ethics or an area related to the 
profession, and is taught at a level which challenges the 
CPA. 

(d) Because of differences in the education and experience 
of CPAs, a course may contribute to the professional 
competence of one CPA but not another. Each CPA must 
therefore exercise judgment in selecting courses for which 
CPE credit is claimed and choose only those that contribute 
to that CPA's professional competence. 

(e) Active CPAs must complete 40 CPE hours, computed 
in accordance with 21 NCAC 8G .0409, by December 31 of 
each year, except as follows: 



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( 1 ) CPAs having certificate applications approved by 
the Board in April-June must complete 30 CPE 
hours during the same calendar year. 

(2) CPAs having certificate applications approved by 
the Board in July-September must complete 20 
CPE hours during the same calendar year. 

(3) CPAs having certificate applications approved by 
the Board in October-December must complete 
10 CPE hours during the same calendar year. 

(f) There are no CPE requirements for retired or inactive 
CPAs. 

(g) Any CPE hours completed during the calendar year 
in which the certificate is approved may be used for that 
year's requirement even if the hours were completed before 
the certificate was granted. When a CPA has completed 
more than the required number of hours of CPE in any one 
calendar year, the extra hours, not in excess of 20 hours, 
may be carried forward and treated as hours earned in the 
following year. 

(h) Any CPE hours used to satisfy the requirements for 
change of status as set forth in 21 NCAC 8J .0005 (b)-ef 
(e), for reinstatement as set forth in 21 NCAC 8J .0006, or 
for application for a new certificate as set forth in 21 NCAC 
81 .0004 may also be used to satisfy the annual CPE 
requirement set forth in Paragraph (e) of this Rule. 

(i) It is the CPA's responsibility to maintain records 
substantiating the CPE credits claimed for the current year 
and for each of the four calendar years prior to the current 
year. 

Statutory Authority G.S. 93-12(8b). 

SUBCHAPTER 8J - RENEWALS AND 
REGISTRATIONS 

.0005 RETIRED AND INACTIVE STATUS: 
CHANGE OF STATUS 

(a) A CPA may apply to the Board for change of 
status to retired status or inactive status provided the 
CPA meets the description of the appropriate status as 
defined in 21 NCAC 8A .0301. Application for any 
status change may be made on the annual certificate 
renewal form or another form provided by the Board. 

(b) A CPA who does not meet the description of 
inactive or retired as defined in 21 NCAC 8 A .0301 may 
not be or remain on inactive or retired status. 

(c) A CPA on retired status may change to active 
status by: 

(1) paying the certificate renewal fee for the 
license year in which the application for 
change of status is received; and 

(2) furnishing the Board with evidence of satisfac- 
tory completion of 40 hours of acceptable 
CPE courses during the 12 month period 
immediately preceding the application for 
change of status. Eight of the required hours 



must be credits derived from a course or 
examination in North Carolina accountancy 
statutes and rules (including the Code of 
Professional Ethics and Conduct contained 
therein) as set forth in 21 NCAC 8G .0401 (a) 
8F .0504 . 

(d) A CPA on retired status may change to inactive 
status by surrendering his or her certificate. 

(e) Any individual on inactive status may change to 
active status by complying with the requirements of 21 
NCAC 8J .0006(c). 

Statutory Authority G.S. 93-12(8); 93-1 2(8b). 

.0008 FIRM REGISTRATION 

(a) All CPA firms must register with the Board within 30 
days after opening a North Carolina office or beginning a 
new firm unless they are a professional corporation, 
professional limited liability company, or registered limited 
liability partnership, in which case they must register prior 
to formation pursuant to 21 NCAC 8K .0104. 

(b) In addition to the initial registration required by 
Paragraph (a) of this Rule, all CPA firms must register 
annually by January 3 1 with the Board upon forms provided 
by the Board. 

(c) The information provided by the registration shall 
include: 

(1) Either an application for exemption from SQR, 
a request to be deemed in compliance with SQR 
or registration for SQR, pursuant to 21 NCAC 
8M .0102 and .0104; 

(2) For all firms not exempt from the SQR pro- 
gram, with the registration immediately follow- 
ing its review, the affidavit statement required 
by 21 NCAC 8M .0102(d); 

(3) For all North Carolina offices, an office regis- 
tration form indicating the name of the office 
supervisor, the location of the office and its 
telephone number; 

(4) For all partnerships or registered limited liability 
partnerships, a list of all resident and nonresi- 
dent partners of the partnership; 

(5) For all professional limited liability companies, 
the information set forth in 21 NCAC 8K 
.0104(d); 

(6) For all incorporated firms, the information set 
forth in 21 NCAC 8K .0104(d); 

(7) For all firms, the appropriate registration fees 
as set forth in 21 NCAC 8J .0010; and 

(8) For all new firms, the percentage of ownership 
held individually by each partner, shareholder, 
or member: 

(A) in the new firm; and 

(B) at the year-end in each firm in which that 
partner, member, or shareholder was a part- 
ner, member, or shareholder during the pre- 
ceding two years. 



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(d) All information provided for registration with the 
Board shall pertain to events of and action taken during the 
year preceding the year of registration. The last day of the 
preceding calendar year is the "year-end". 

(e) With regard to Paragraph (c)(3) of this Rule, one 
representative of a firm may file all documents with the 
Board on behalf of the firm's offices in North Carolina. 
However, responsibility for compliance with this Rule will 
remain with each office supervisor. 

(0 With regard to Paragraph (c)(4) or (c)(5) of this Rule, 
one annual listing by a representative of the partnership, 
registered limited liability partnership, or professional 
limited liability company shall satisfy the requirement for all 
partners or members of the firm. However, each partner or 
member shall remain responsible for compliance with this 
Rule. The absence of a filing under Paragraph (c)(4) or 
(c)(5) of this Rule shall be construed to mean that no 
partnership, registered limited liability partnership, or 



professional limited liability company exists. 

(g) Notice that a firm has dissolved or any change in the 
information required by Paragraph (c)(3) of this Rule must 
be delivered to the Board's office within 30 days after the 
change or dissolution occurs. 

(h) Upon written petition by a firm, the Board may. in its 
discretion, grant the firm a conditional registration for a 
period of 60 days or less, if the firm shows that circum- 
stances beyond its control prohibited it from registering with 
the Board, completing a quality review or notifying the 
Board of change or dissolution pursuant to Paragraphs (a), 
(b), (c), and (g) of this Rule. The Board may grant a 
second extension under continued extenuating circumstances. 

Statutory Authority G.S. 55B-10; 55B-12; 57C-1; 57C-2; 59- 
84.2; 93-12(8a); 93-12(8c). 



SUBCHAPTER 8M - STATE QUALITY REVIEW PROGRAM 
SECTION .0100 - GENERAL SQR REQUIREMENTS 

.0102 REGISTRATION REQUIREMENTS 

(a) A firm which has not performed any audits, reviews or compilations during the 12 months prior to the year-end of 
the registration required by 21 NCAC 8J .0008(a) and (b) shall be exempt from the SQR program for the 12 months 
following the year-end but not from registering with the Board. 

(b) Unless exempt under Paragraph (a) of this Rule, each ongoing firm must complete an SQR within 12 months following 
the year-end of each registration unless it has completed an SQR within 24 months prior to the year-end. 

(c) Unless exempt under Paragraph (a) of this Rule, a new firm shall complete its initial SQR within 24 months of the 
date of its initial registration pursuant to 21 NCAC 8J .0008(a). 

(d) Every firm not exempt from SQR by Paragraph (a) of this Rule, after completion the exit conference of a quality 
review, must procure an affidavit a statement signed by the review team captain, a statement signed by a member of the firm 
being reviewed, or letter of acceptance from an approved review program, stating that the firm has completed an SQR or 
one of the review programs listed or referred to in 21 NCAC 8M .0104. The firm shall submit the affidavit statement or 
documentation with the annual registration following the review as set forth in 21 NCAC 8J .0008(c)(2). 

(e) For purposes of this Rule, an SQR is complete when the review team has delivered its report required by 21 NCAC 
8M .0306 to the reviewed firm. Any quality review other than SQR is complete when the review team has delivered its final 
report to the reviewed firm. If mailed, a report shall be deemed delivered when postmarked. 

Note: For example, firm C was incorporated on June 1 , year one. During that year it performed accounting and auditing 
services and, therefore, was not exempt from the SQR program. It continued to do auditing and accounting work for the 
next three years (years two, three and four) but it did not do any audits, reviews, or compilations in years five and six. In 
year seven, the firm completed several compilations but, in year eight, it did not issue any audits, reviews, or compilations. 
In year nine, the corporation dissolved, at which time it notified the Board of its dissolution pursuant to 21 NCAC 8J 
.0008(g). The following chart shows the history of firm C as it relates to the SQR program, SQR fees it was required to 
pay pursuant to 21 NCAC 8J .0010, and when and why it was required to complete an SQR pursuant to this Rule. 



Year 



Audits, Reviews or 
Compilations Performed 



Fee 



Completion of SQR 
Required and Rationale 



2 
3 



Yes 

Yes 

Yes 



SQR Fee 

SQR Fee 
SQR Fee 



A new firm has 24 months to complete SQR 
- 21 NCAC 8M .0102(c); the firm is re- 
quired to 
complete SQR before June 1, year 3. 

Completes SQR on May 15, year 3 (within 
24 months of its inception) 21 NCAC 8M 



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Yes 



No 



No 



Yes 



SQR Fee 

Exempt Fee 

Exempt Fee 

SQR Fee 



.0102(c). 

Not required to complete SQR in year 5 because 
the firm completed SQR on May 15, year 3 i 
(within 24 months of year-end of year 4) - 21 " 
NCAC 8M .0102(b). 



No 



Yes 



Will not be required to complete SQR in year 6 
because it is exempt - 21 NCAC 8M .0102(a). 

Not required to complete SQR in year 7 because 
it is exempt - 21 NCAC 8M .0102(a). 

Will be required to complete SQR in year 8 
because it has not completed SQR within 24 
months of year-end of year 7 (last SQR was 
completed May 15. year 3) - 21 NCAC 8M 
.0102(b). 

Exempt Fee Completes SQR pursuant to its registration in 

year 7-21 NCAC 8M .0102(b). 

Not required to register or pay a fee at year-end 
of year 9 because firm dissolved during year 9 
and properly notified the Board - 21 NCAC 8J 
.0008(g). 



No Fee 



Statutory Authority G.S. 93-12(7b); 93-1 2(8c). 

.0104 FIRMS DEEMED EV COMPLIANCE 

(a) Firms which have participated in one of the review 
programs set forth in either Paragraph (Id) of this Rule or 
the list referred to in Paragraph (c) of this Rule, rather 
than SQR, within the applicable time period prescribed 
by 21 NCAC 8M .0102(b) and (c) are deemed to be in 
compliance with the SQR program. 

(b) The following quality review programs are found 
by the Board to be of the type required by the Board in 
its SQR program: 

( 1 ) AICPA Division for CPA Firms SEC Practice 
Section, and 

<-2-> AICPA — Division — fef — CPA — Firms — Privat e 

Compani e s Practic e S e ction, and 

(2) 0} AICPA Quality Peer Review Program. 

(c) Other quality review programs may be of the type 
required by the Board in its SQR program. A list of 
such programs will be maintained at the Board offices 
and mailed to any firm upon request. 

(d) Pursuant to G.S. 93-12(8c), a firm which contem- 
plates undergoing a quality review program other than 
the SQR program or those listed or referred to in Para- 
graphs (b) and (c) of this Rule may request a determina- 
tion from the Board whether the quality review program 
is of the type required by the Board in the SQR program. 
The firm shall supply all information requested of it by 
the Board and, within two months of the month all 



information requested has been received by the Board, I 
the Board shall make its determination and notify the 
firm. 

Statutory Authority G.S. 93-12(8c)(e). 

SECTION .0300 - REVIEW TEAM: 
QUALIFICATIONS AND DUTIES 

.0306 REPORTrNG REQUIREMENTS 

(a) The review team shall deliver an SQR report and the 
affidavit statement required by 21 NCAC 8M .0102(d) to 
the participating firm within 60 days after all of the engage- 
ments which are to be reviewed have been delivered to it. 
Beginning January 1. 1996, the review team shall also 
deliver its SQR report to the SQR Advisory Committee by 
the same date. 

(b) The SQR report and a letter of comment, if any, shall 
be written and issued on the letterhead of the team captain's 
firm and shall either be unmodified, modified, or adverse. 

(c) It is suggested that a letter of comment be issued if 
the report is modified or adverse. A letter of comment, if 
issued, shall provide reasonably detailed recommendations 
for remedial, corrective actions by the participating firm so 
that the SQR Committee can evaluate whether the firm's 
response to significant deficiencies noted in the review is a | 
positive one, consistent with the objectives of the SQR " 
program, and whether the actions taken or planned by the 



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PROPOSED RULES 



participating firm appear appropriate in the circumstances. 

(d) The SQR report shall describe the limited scope of the 
review and shall not express an opinion or any form of 
assurance about the reviewed firm's quality control policies 
and procedures for its accounting practice. It shall state 
whether anything came to the attention of the review team 
which caused them to believe that any of the engagements 
submitted for review did not conform with the requirements 
of professional standards in all material respects and, if 
applicable, describe the general nature of significant depar- 
tures from those standards. 

(e) An unmodified report includes the review team's 
conclusion that nothing came to its attention that caused its 
members to believe that the engagements submitted for 
review did not conform with the requirements of profes- 
sional standards in all material respects. 

(f) A modified report includes the review team's conclu- 
sion that nothing came to its attention that caused its 
members to believe that the engagements submitted for 
review did not conform with the requirements of profes- 
sional standards in all material respects with the exception 
of certain reservations which are noted in the report. 

(g) An adverse report includes the review team's conclu- 
sion that the participating firm did not have reasonable 
assurance of conforming with professional standards in the 
conduct of its accounting practice during the year under 
review. 

Statutory Authority G.S. 93-1 2(8c). 

SECTION .0400 - SQR ADVISORY COMMITTEE 

.0401 SQR ADVISORY COMMITTEE - 
MEMBERS AND DUTIES 

(a) The SQR Advisory Committee shall consist of six 
CPAs appointed by the Board and one Board member 
appointed by the Board's President. 

(b) The SQR Committee shall: 

(1) review all initial firm registrations submitted to 
the Board pursuant to 21 NCAC 8J .0008(a); 

(2) review all affidavits statements submitted by 
review team captains to the reviewed firm 
pursuant to 21 NCAC 8M .0102(d) and submit- 
ted to the Board pursuant to 21 NCAC 8J 
.0008(c)(2); 

(3) beginning January 1, 1996, review all modified 
and adverse SQR reports and letters of com- 
ments, if any, submitted by review team captains 
under the SQR program; 

(4) consider all objections filed pursuant to 21 
NCAC 8M .0402(a); and 

(5) make recommendations to the Board consistent 
with these Rules concerning each of Subpara- 
graphs (b)(1) through (4). 

(c) Prior to making any recommendations to the Board, 
the Committee shall give notice of its proposed recommen- 
dation to the firm to which the recommendation pertains. 



(d) The Committee shall also recommend remedial action 
to participating firms receiving modified or adverse reports 
which, if followed, could increase the participating firm's 
ability to perform quality services in the public practice of 
accounting. 

(e) The Committee shall report at least annually to the 
Board on its activities and, further, at any time the Board 
requests a special report. 

Statutory Authority G.S. 93-12(2); 93-1 2(8c). 

SUBCHAPTER 8N - PROFESSIONAL ETHICS 
AND CONDUCT 

SECTION .0200 - RULES APPLICABLE TO 
ALL CPAs 

.0203 DISCREDITABLE CONDUCT PROHIBITED 

(a) Discreditable Conduct. A CPA shall not engage in 
conduct discreditable to the accounting profession. 

(b) Prohibited Discreditable Conduct. Discreditable 
conduct includes but is not limited to: 

(1) acts that reflect adversely on the CPA's honesty, 
integrity, trustworthiness, good moral character, 
or fitness as a CPA in other respects; &e 

(2) stating or implying an ability to improperly 
influence a governmental agency or official; or 
official. 

(3) failing to comply with any order issued by the 
Board. 

Statutory Authority G.S. 55B-12; 57C-2-01; 93-12(9). 

SECTION .0300 - RULES APPLICABLE TO ALL 

CPAs WHO USE THE CPA TITLE IN OFFERING 

OR RENDERING PRODUCTS OR SERVICES TO 

CLIENTS 

.0302 FORMS OF PRACTICE 

(a) Authorized Forms of Practice. A CPA shall not 
directly or indirectly offer or render accounting services 
(including tax and management advisory services) to clients 
except through a duly authorized CPA sole proprietorship, 
partnership of CPAs, CPA Professional Corporation, 
Professional Limited Liability Company, or Registered 
Limited Liability Partnership. 

(b) Authorized Partners. A CPA shall not engage in the 
public practice of accountancy with a partner who is anyone 
other than the holder of an unrevoked and currently valid 
CPA certificate. 

(c) Ancillary Practice. A CPA may, through another 
lawful form of professional practice, offer or render such 
non-attest accounting services as are ancillary to another 
learned profession regulated by a statutorily authorized 
licensing board in this state; further provided, the CPA is 
licensed by the respective licensing board and offers or 
renders those services through a business form authorized 



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PROPOSED RULES 



by the respective licensing board and does not hold out the 
non-CPA firm as CPA firm. Any such CPA must neverthe- 
less register for SQR as an exempt individual practitioner. 

(d) Firm Registration Required. A CPA shall not engage 
in the public practice of accountancy through a firm which 
is in violation of the registration requirements of 21 NCAC 
8J .0008, 8J .0010, or the SQR requirements of 21 NCAC 
8M .0102. 

(e) Supervision of CPA Offices. Every CPA office or 
CPA firm in North Carolina shall be actively and locally 
supervised by a designated actively licensed North Carolina 
CPA whose primary responsibility and a corresponding 
amount of time shall be work performed in that office. 

Statutory Authority G.S. 55B-12; 57C-2-01; 93-12(9). 

.0307 FIRM NAMES 

(a) Deceptive Names Prohibited. A CPA or CPA firm 
shall not trade upon the CPA title through use of any name 
that would have the capacity or tendency to deceive. 

fb) Style of Practice. It is considered misleading if a firm 
practices under a name or style which would tend to imply 
the existence of a partnership or registered limited liability 
partnership or a professional corporation or professional 
limited liability company of more than one shareholder or 
member or an association when in fact there is no partner- 
ship nor is there more than one shareholder or member in 
the firm. For example, no firm having just one owner may 
have as a part of its name the words "associates" or "com- 
pany" or their abbreviations. 

(c) Assumed Names Subject to Approval. Before any 
firm uses an assumed name (as described in G S. 66-68) it 
must submit the proposed name for Board approval. 

Statutory Authority G.S. 55B-12; 57C-2-01; 93-12(9). 

****************** 

CHAPTER 10 - BOARD OF 
CHIROPRACTIC EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Board of Chiropractic Exam- 
iners intends to amend rule cited as 21 NCAC 10 .0203. 

Proposed Effective Date: August 1 , 1995. 

A Public Hearing will be conducted at 12:00 (noon) on 
June 10. 1995 at the Holiday Inn Four Seasons, 3121 High 
Point Road at 1-40, Greensboro, NC 27407. 

Reason for Proposed Action: To bring the North Carolina 
chiropractic examination into conformity with changes in the 
examination given to all licensure applicants by the National 
Board of Chiropractic Examiners. 

Comment Procedures: Interested parties may file written 



comments through June 14, 1995. Comments should be 
addressed to: 

Vance C. Kinlaw, Attorney 

N. C. Board of Chiropractic Examiners 

201 W. Market Street, Suite 409 

Greensboro, NC 27401. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of local government or state funds. 

SECTION .0200 - PRACTICE OF CHmOPRACTIC 

.0203 EXAMINATIONS 

(a) Eligibility. Only those applicants who meet the 
requirements of G.S. 90-143, or in the case of reciprocity 
applicants, G.S. 90-143.1, and who have submitted a timely 
and complete written application pursuant to 21 NCAC 10 
Rule .0202 shall be allowed to take the examination. 

fb) Date of Examination. The examination shall be given 
twice annually. The spring examination shall commence on 
the first Saturday after the first Tuesday in June. The fall 
examination shall commence on the first Saturday after the 
first Tuesday in November. Applicants eligible for exami- 
nation will be notified of the exact date, time and location 
of the examination as soon as possible after their written 
applications have been approved by the Board. 

(c) Structure of Examination. — The examination shall be 
given ov e r a two day p e riod. — It ohall consist of a writt e n 
portion and an oral portion: 

(+) The written portion s hall include que s tions on 

the mandatory studios listed in G.S. 90 1 4 3, and 
may includ e qu e stions on th e following addi 

tional s ubj e ct s : chiropractic analy s i s , 

symptomology, spinography. nutrition, x ray, 
ethic s , chiropractic procedures, and physiologi 
oal th e rap e utics. 

(-2) Di e oral portion is int e nd e d to tost th e appli 

cant's proficiency in the practical aspects of 
chiropractic and to augment the information 
submitted in his writt e n application. — The oral 
portion may includ e quest i ons on th e following 
subjects: x ray, general offico practice, chiro 
practic analysi s , procedure, examination, diagno 
si s , and tr e atment. 



(34 Th e oral portion may b e giv e n at any tim e 

during the examination period. — If an applicant 
has not completed the written portion at the time 
h e is called for oral e xamination, ho shall bo 
allow e d to r e sum e th e writt e n portion at tho 
point whore he was int e rrupted. 

(4) No portion of tho examination is open book, and 

no r e f e r e nc e mat e rial of any kind ohall bo al 

low e d in th e e xamination ar e a. 

(c) National Boards. In order to be eligible to take the 

North Carolina examination, an applicant must first have 

taken and passed each of the following examinations given 

by the National Board of Chiropractic Examiners: Part J^ 



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Part 2j Part 3± Physical Therapy. It shall be the applicant's 
responsibility to arrange for his test results from the 
National Board examinations to be reported to the North 
Carolina Board in advance of examination weekend, 

(d) Acceptance of Diplomatos. — Tho writton examination 
giv e n by th e North Carolina Board of Examin e rs is pr e pared 
by th e National Board of Examin e rs and is a duplication of 
the national examination with the exception of questions in 
x ray. jurisprudence, physiological therapeutics and diagno 
si«T — Th e r e for e , an applicant who has alr e ady pass e d tho 
national — e xamination — and — been — accord e d — th e status — &f 
Diplomate may omit all of tho North Carolina writton 
xamination except those questions pertaining to x ray, 
urioprud e no e , — physiologioal — th e rap e utios — and diagnosis. 



jurisprude 



How e vor, th e Diplomat e must tak e th e oral examination in 

its entirety. 

(+) Diplomatos seeking exemption from duplicative 

portions of th e writt e n examination shall c e rtify' 
th e ir status to th o Board prior to tho date of 
examination. 

f2-) Unless released early by tho Board, Diplomatos 

must b e pr e s e nt during th e e ntire two day t e sting 
p e riod so that th e ir oral examinations may be 
given without disrupting the examination sched 

(d) Nature of Examination. The North Carolina examina- 
tion is intended to test an applicant's proficiency in the 
practical aspects of chiropractic and to augment the informa- 
tion submitted in his written application. The examination 
is administered orally and may may include questions on the 
following subjects: x-ray; general office practice; and 
chiropractic analysis, procedure, examination, diagnosis and 
treatment. No portion of the examination is open-book, and 
no reference material of any kind shall be allowed in the 
examination area. 

(e) Passing Grade. To pass the examination, an applicant 
must answer correctly a minimum of 65 percent of the 
questions on each subject and must also answer correctly an 
average of 75 percent of all the questions on the examina- 
tion. An applicant who fails because of a deficiency in only 
one subject may be re-examined in that subject the next time 
the examination is given and shall not be required to pay 
another application fee. An applicant who fails the exami- 
nation for any other reason must re-take the entire examina- 
tion and pay another application fee. 

(0 Review of Examination Results. An applicant who 
has been denied licensure because of failing examination 
grades may request a review of his answers provided his 
request is made in writing and received by the secretary not 
later than 20 days after issuance of the examination results. 
The review shall be limited to a re-tabulation of the appli- 
cant's test scores to make certain no clerical errors were 
made in grading. Applicants shall not be permitted to 
discuss their examinations with Board members, graders or 
test administrators. 

Statutory Authority G.S. 90-142; 90-143. 



****************** 

CHAPTER 37 - BOARD OF NURSING HOME 
ADMINISTRATORS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Examiners for Nursing Home Administrators intends to 
amend rules cited as 21 NCAC 37 .0101 and .0904. 

Proposed Effective Date: August 1, 1995. 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): Anx 
request for a public hearing on these rules must be made in 
writing and directed to Jane Ahemathey, Executive Director, 
N.C. State Board of Nursing Home Administrators, 3701 
National Drive , Suite 123, Raleigh, NC 27612 by 4:00 p.m. 
on May 31, 1995. 

Reason for Proposed Action: 

21 NCAC 37 .0101 - To remove unnecessary language 

regarding providing a copy of Board rules to candidates for 

licensure, since a copy of such rules is included in the 

application package. 

21 NCAC 37 .0904 - To increase the fee required for 

biennial licensure renewal. 

Comment Procedures: Written comments must be submit- 
ted to the Board office by 9:00 a.m. on June 14, 1995. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of local government or state funds. 

SECTION .0100 - GENERAL PROVISIONS 

.0101 COPIES OF RULES 

Copies of the Rules in this Chapter may be obtained 
from the Office of Administrative Hearings, Raleigh, 
N.C, for a small charge for duplication purposes. The 
Board will provide one free copy to each licensed 
administrator and candidates for licensure . 

Statutory Authority G.S. 90-285. 

SECTION .0900 - LICENSES 

.0904 BIENNIAL REGISTRATION 
REQUIREMENTS 

(a) Upon making application for a new certificate of 
registration a licensee shall pay a biennial licensure fee 
of two hundred fifty dollar s ($250.00) three hundred 
dollars ($300.00) . 

(b) Such licensee shall provide documentation of the 
completion of 30 hours of continuing education approved 



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262 



PROPOSED RULES 



by the Board during each biennial period. 
Statutory Authority G.S. 90-280; 90-285; 90-286. 

****************** 

CHAPTER 58 - REAL ESTATE COMMISSION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Real Estate Com- 
mission intends to amend rules cited as 21 NCAC 58A 
.0403. .0503 and .0505. The italicized text in 21 NCAC 
5SA .0505(a) is proposed to be deleted from the rule 
effective Julx 1 , 1995 and was published in Volume 10, Issue 
2 of the North Carolina Register. (10:2 NCR 157-166, April 
17. 1995) 

Temporary: These Rules were filed as temporary amend- 
ments effective April 24, 1995 for a period of 180 days or 
until the permanent rule becomes effective, whichever is 
sooner. 

Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 9:00 a.m. on June 
6. 1995 at the North Carolina Real Estate Commission, 
1313 Navaho Drive, Raleigh, NC 

Reason for Proposed Action: To codify changes in 
requirements and procedures concerning license examina- 
tions and license renewal fees in light of the General 
Assembly's ratification of House Bill 33 on April 4, 1995. 

Comment Procedures: Comments regarding the rules may 
be made orally or submitted in writing at the public hearing. 
Written comments not submitted at the hearing may be sent 
to or delivered to Mr. Stephen L. Fussell c/o North Carolina 
Real Estate Commission, P.O. Box 17100, Raleigh, NC 
27619-7100, so as to be received by June 14, 1995. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of local government or state funds. 

SUBCHAPTER 58A - REAL ESTATE BROKERS 
AND SALESMEN 

SECTION .0400 - EXAMINATIONS 

,0403 RE-EXAMINATION 

If an applicant fails to pass th e initial e xamination for 
which ho has been schedul e d, — h e will b e r e sch e dul e d 
without additional fee for one r e examination at a time and 
place de s ignated by the executive director. If an applicant 
fails to pass his re examination an examination or fails to 
appear for and take any examination for which he has been 
scheduled, he shall make written application to the Commis- 
sion upon a prescribed form accompanied by the appropriate 



fee, if he wishes to obtain a real estate license. 

Statutory Authority G.S. 93A-4(b),(d). 

SECTION .0500 - LICENSING 

.0503 LICENSE RENEWAL; PENALTY FOR 

OPERATING WHILE LICENSE EXPIRED 

(a) All real estate broker, salesman or corporate broker 
licenses issued by the Commission under Article 1 , Chapter 
93A of the General Statutes shall expire on the 30th day of 
June following issuance. Any licensee desiring renewal of 
a license shall apply for renewal within 45 days prior to 
license expiration by submitting a renewal application on a 
form prescribed by the Commission and submitting with the 
application the required renewal fee of twenty five dollars 
($25.00) . 

(b) Beginning in 1995, any person desiring to renew his 
license on active status shall, upon the second renewal of 
such license following initial licensure, and upon each 
subsequent renewal, have obtained all continuing education 
required by G.S. 93A-4A and Rule .1702 of this Subchap- 
ter. 

(c) A person renewing a license on inactive status shall 
not be required to have obtained any continuing education 
in order to renew such license; however, in order to 
subsequently change his license from inactive status to active 
status, the licensee must satisfy the continuing education 
requirement prescribed in Rule .1703 of this Subchapter. 

(d) Any person or corporation which engages in the 
business of a real estate broker or salesman while his or its 
license is expired is subject to the penalties prescribed in 
Chapter 93A of the General Statutes. 

Statutory Authority G.S. 93A-3(c); 93A-4(c),(d); 93A-4A; 
93A-6. 

.0505 REINSTATEMENT OF EXPIRED LICENSE 

(a) Licenses expired for not more than 1 2 months may be 
reinstated upon proper application and payment of the 
twenty five dollar ($25.00) required renewal fee plus five 
dollar ($5.00) late filing fee. In order to reinstate such 
license on active status for a license period beginning on or 
after July 1, 1995, the applicant shall also present evidence 
satisfactory to the Commission of having obtained such 
continuing education as is required by Rule .1703 of this 
Subchapter to change an inactive license to active status. 
status, except that the time during which the license was 
expired siiall also count as inactive time for the purpose of 
determining the amount of continuing education elective 
credit hours required. A person reinstating such a license 
on inactive status shall not be required to have obtained any 
continuing education in order to reinstate such license; 
however, in order to subsequently change his reinstated 
license from inactive status to active status, the licensee ' 
must satisfy the continuing education requirement prescribed 
in Rule .1703 of this Subchapter and the time during which 



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the license was expired shall also count as inactiw time for 
the purpose of determining the amount of continuing educa 
tion elective credit hours required . 

(b) Reinstatement of licenses expired for more than 12 
months may be considered upon proper application and 
payment of a thirty dollar ($30.00) fee. Applicants must 
satisfy the Commission that they possess the current knowl- 
edge, skills and competence necessary to function in the real 
estate business in a manner that protects and serves the 
public interest. In this regard, the Commission may require 
such applicants to complete real estate education and/or pass 
the license examination. 

Statutory Authority G.S. 93A-3(c); 93A-4(c),(d); 93A-4A. 

CHAPTER 60 - BOARD OF REFRIGERATION 
EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Refrigeration Exam- 
iners intends to amend rules cited as 21 NCAC 60 .0102, 
.0204, .0314, and .1102. 

Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 10:00 a.m. on June 
9, 1995 at 410 Oberlin Road, Suite 410, Raleigh, NC 
27605. 

Reason for Proposed Action: 

21 NCAC 60 .0102 .1102 - corrects address. 

21 NCAC 60 .0204 - redefines grade to pass examination. 

21 NCAC 60 .0314 - clarifies use of license. 

Comment Procedures: All persons interested in this matter 
are invited to attend the public hearing. The State Board of 
Refrigeration Examiners will receive mailed written com- 
ments postmarked no later than June 14, 1995. More 
information may be obtained by contracting the Board 
Office, P.O. Box 30693, Raleigh, NC 27622, 919-781-1602. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of local government or state funds. 

SECTION .0100 - ORGANIZATION AND 
DEFINITIONS 

.0102 OFFICE OF BOARD 

The Board's office is located at 3716 National Dr., Suite 
450 410 Oberlin Road, Suite 410 , Raleigh, North Carolina. 
The Board's mailing address is P.O. Box 30693 10666 , 
Raleigh, North Carolina 27622 27605 . The Board's rules 
are available for inspection at this office during regular 
office hours. The materials used in rule-making decisions 
will be available for inspection at said office. 



Statutory Authority G.S. 87-54; 150B-11(2). 

SECTION .0200 - EXAMINATIONS 

.0204 SCORING EXAMINATIONS 

Refrigeration contractor examinations are divided into four 
parts, "A," "B," "C" and "D." Each part of the examination 
carries an equal weight of 25 percent of the total grade 
score. Each applicant must make an average grade of at 
least successfully complete 70 percent of each part to pass 
an examination. Each candidate who passes an examination 
is issued a refrigeration contractor's license. Each person 
who fails an examination is notified of his average score and 
the parts of the examination which he failed. 

Statutory Authority G.S. 87-54; 87-58. 

SECTION .0300 - LICENSES AND FEES 

.0314 USE OF LICENSE 

(a) The licensed contractor shall not permit the use of his 
license by any other person. 

(b) All refrigeration contracting business, including all 
business advertising and the submission of all documents 
and papers by a licensee of the Board shall be conducted in 
the exact name in which the refrigeration contracting license 
is issued. 

Statutory Authority G.S. 87-54; 87-57. 

SECTION .1100 - ADMINISTRATIVE HEARINGS: 

DECISIONS: RELATED RIGHTS AND 

PROCEDURES 

.1102 PREFERRING CHARGES 

Any person who believes that any refrigeration contractor 
is in violation of the provisions of G.S. 87-59 may prefer 
charges against such contractor by setting forth the charges 
in writing with particularity including, but not limited to, the 
date and place of the alleged violation. Such charges shall 
be signed and sworn to by the party preferring such charges 
and filed with the Executive Director of the State Board of 
Refrigeration Examiners at the office of the Board, 3716 
National Drive 410 Oberlin Road, Suite 410 , P.O. Box 
30695 10666 , Raleigh, North Carolina 2-7632 27605 . 

Statutory Authority G. S. 87-59. 



TITLE 25 - OFFICE OF STATE 
PERSONNEL 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Personnel Commission intends 
to amend rules cited as 25 NCAC 1C .0402-. 0408; ID 
.0201, .0205, .0207, .0211, .0808, .1001, .1009, .1201, 
.1204, .1401, .1801 - .1802, .2001; IE .0804; IK .0312; 



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and repeal 25 NCAC 1C .0207. 

Proposed Effective Date: August 1, 1995. 

A Public Hearing will be conducted at 9:00 a.m. on June 
8, 1995 at the State Personnel Development Center, 101 
West Peace Street, Raleigh, NC 27604. 

Reason for Proposed Action: These Rules are proposed to 
be amended in order to provide clarification to state agen- 
cies and universities on appointments, i.e. probationary, 
trainee, permanent, time-limited, temporary, permanent 
part-time, temporary part-time and intermittent. The rules 
relating to extended duty are proposed to be amended in 
order to provide for physicians , as well as other medical 
personnel which are approved by the Office of State Person- 
nel, to be employed for extended duty. These rules are also 
proposed to be amended in order to extend the provision for 
paying additional straight-time for extended duty to all 
medically related areas for positions that are exempt from 
the Fair Labor Standards Act and limits the number of 
extended duty hours to 20 hours per week. 

Comment Procedures: Interested persons may present 
statements either orally or in writing at the Public Hearing 
or in writing prior to the hearing by mail addressed to: 
Patsy Smith Morgan, Office of State Personnel, 116 West 
Jones Street, Raleigh, NC 27603. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of local government or state funds. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER 1C - PERSONNEL 
ADMINISTRATION 

SECTION .0200 - GENERAL EMPLOYMENT 
POLICY 

.0207 MEDICAL EXAMINATIONS 

(*) — An e mploy ee will not b e r e quir e d to s e parat e from 



state services 



s been 



)f ag e 



alone prior to reaching retire 
ment age. — However, earlier retirement or termination may 
b e n e cessary if. through e stablish e d m e dical e xamination 
proc e dur e s, an e mploy ee is found not physically fit for th e 
performance of his duties. 

fb) — If the agency head has reason to believe that an 
e mploy ee is not physically capabl e of prop e rly p e rforming 
his assign e d duti e s, h e may r e quir e th e e mploy e e to have a 
physical examination. — In such cases, the following proco 
dures will apply: 

fH Upon r e qu es t by an ag e ncy h e ad, th e Offic e of 

Stat e — Personn e l. — in — cooperation — with — North 
Carolina Memorial Hospital, will de s ignate an 
internist located in rea s onable proximity to the 
e mploy ee 's plac e of r e sidenc e . 



f£) The agency head, upon receiving notice of the 

d e signat e d internist, will make an appointment 
for th e e xamination and inform th e e mploye e as 
to the place and time. 

f3-) The agency head shall prepare a detailed state 

m e nt of th e duti e s and responsibilities required 
of th e e mployee and will forward such informa 
tion to the North Carolina Memorial Hospital. 

(4) Upon — receipt — of the internist's examination 

r e port by Memorial — Hospital. — a r e vi e w — and 
e valuation of the e xamination report will be 
made, taking into consideration the physical 
requirement s of the job. — Based upon this re 
vi e w, M e morial Hospital will forward to the 
ag e ncy th e result s of th e ir e valuation. — This 
information will be included as part of the 
administrative evaluation in reaching a decision 
conc e rning th e e mploy ee 's fitn e ss for continued 
e mploym e nt. 
Members of the State Highway Patrol are sub 



(9- 



jeet — te — the — physical — fitness — requirements — as 
provid e d und e r th e M e dical Evaluation Program. 
Th e cost of such phy s ical e xaminations will b e 
paid by the state agency. 



Statutory Authority G.S. 126-4. 

SECTION .0400 - APPOINTMENT 

.0402 PERMANENT APPOINTMENT 

(a) Permanent - A permanent appointment is a permanent 
full-time appointment to a permanent full-time established 
position. A permanent appointment shall be given when: 

the requirements of the probationary period have 

been satisfied, 



LJJ 
(2) 



an employee in a trainee appointment has com- 
pleted all training and experience requirements, 
or 
(3) a time-limited appointment extends beyond three 
years. 
(b) A tim e limit e d p e rman e nt appointment my b e mad e 
tor Time-limited Permanent z A time-limited permanent 
appointment is an appointment that has a limited duration to: 

(1) a permanent position that is vacant due to the 
incumbent's leave of absence and when the 
replacement employee's services will be needed 
for a period of one year or less, 

(2) a time-limited permanent position, that ha s an 
e stablished duration of no mor e than two years. 
If an employee is retained in a time-limited 
permanent position beyond three years, the 
employee shall be designated as having a perma- 
nent appointment. 

Such appointment — shall not be made for le ss than six 
months. — The appointment may be extended up to one ' 
additional y e ar upon writt e n r e quest of the employing 
ag e ncy [on Form PD 105 for (1) of thi s Subs e ction: and on 



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PROPOSED RULES 



Forms PD 105 and PD 11 8 for (2) of this Subsection] and 
approval of th e Stnto Poroonnol Direotor. This type of 
appointment is distinguished from a temporary appointment 
by the longer length of time, and from a regular permanent 
appointment by its limited duration. (Sco 25 NCAC II, 
Section .1500 — Forms, in rofor e noo to Forms PD 105 and 
PD 11 8 .) 

(c) Individuals receiving original appointments in state 
government must first serve a probationary appointment 
before being eligible for any permanent appointment. 

(d) Individuals receiving original appointments in state 
government must first serve in a probationary time-limited 
appointment before being eligible for a time-limited perma- 
nent appointment. 

(e) Employees with a permanent appointment earn leave, 
and receive total state service credit, retirement and health 
benefits, and when applicable, severance pay and priority 
reemployment consideration. 

(fj Employees with a time-limited permanent appointment 
earn leave, and receive total state service credit, retirement 
and health benefits. They are not eligible for severance pay 
and priority reemployment. 

Statutory Authority G.S. 126-4. 

.0403 TRAINEE APPOINTMENTS 

(a) A trainee appointment may be made to a permanent 
position when: 



ill 



(21 

(3) 

ill 



in any class for which the job specification 
includes special provisions for a trainee progres- 
sion leading to regular appointment, 
recruitment efforts fail to attract qualified 
candidates, 

operating need warrants a trainee, or 
the recommended applicant fails to meet mini- 
mum State education and experience require- 
ments. 
fb) The trainee appointment, Like the probationary period, 
is also an extension of the selection process and provides the 
time for effective adjustment of the new employee or 
elimination of those whose performance will not meet 
acceptable standards. 

(c) Employees with a trainee appointment earn leave, and 
receive total state service credit, retirement and health 
benefits. When applicable, trainees who have completed six 
months of service or who had a permanent appointment 
prior to entering a trainee appointment may receive sever- 
ance pay and priority reemployment consideration. 

Statutory Authority G.S. 126-4. 

.0404 PROBATIONARY APPOINTMENTS 

(a) Individuals receiving original appointments to perma- 
nent or time-limited permanent positions must serve a 
probationary period. The probationary periods is an 
extension of the selection process and provides the time for 
effective adjustment of the new employee or elimination of 



those whose performance will not meet acceptable stan- 
dards. The maximum length of the probationary period 
shall be not less than three nor more than nine months of 
either full-time or part-time employment from the actual 
date of employment . Within 90 days of employment, prior 
to the granting of permanent status, credentials and applica- 
tion information provided by the employee must be verified. 
Agencies shall inform applicants in writing that credentials 
must be verified prior to the granting of a permanent or 
time-limited appointment status . 

£b) Employees with a probationary appointment earn 
leave, and receive total state service credit, retirement and 
health benefits. They are not eligible for severance pay or 
priority reemployment consideration. 

Statutory Authority G. S. 96-29; 126-4. 

.0405 TEMPORARY APPOINTMENT 

(a) A temporary appointment is an appointment for a 
limited term, normally not to exceed three to six months, to 
a permanent or temporary position. When sufficiently 
justified, a longer period of time may be requested; but in 
no case shall the temporary employment period exceed 12 
consecutive months. (Exceptions for students and retired 
employees: Students are exempt from the 12-months 
maximum limit. If retired employees sign a statement that 
they are not available for nor seeking permanent employ- 
ment, they may have temporary appointments for more than 
12 months. "Retired" is defined as drawing a retirement 
income and/or social security benefits.) 

fb) Employees with a temporary appointment do not earn 
leave, or receive total state service credit, health benefits, 
retirement credit, severance pay, or priority reemployment 
consideration. 

Statutory Authority G. S. 126-4. 

.0406 PERMANENT PART-TIME 

(a) A permanent part-time appointment is an appointment 
of less than full-time to a permanent full-time position or to 
a permanent part-time budgeted position on a continuing 
basis. (Employees with appointments less than full tim e 20 
hours per week earn no benefits.) 

fb) Employees with permanent appointments that are 20 
hours per week or more earn leave benefits (pro-rated), total 
state service credit, and when applicable, severance pay and 
priority reemployment consideration. They do not receive 
retirement credit or health benefits; however, they may 
belong to the group health plan by paving their own premi- 
ums. 

(c) Employees with permanent appointments that are 30 
hours per week or more for at least 9 months per year earn 
leave benefits (prorated), total state service credit, retire- 
ment credit, health benefits and when a pplicable, severance 
pay and priority reemployment consideration. 

Statutory Authority G.S. 126-4. 



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PROPOSED RULES 



.0407 TEMPORARY PART-TIME APPOFNTMENT 

A temporary part-time appointment is an appointment of 
less than full-time for a limited term normally not to exceed 
three to six months. When sufficiently justified, a longer 
period of time may be requested; but in no case shall the 
temporary employment period exceed 12 consecutive 
months. (Exception for students and retired employees: 
Students are exempt from the 12-months maximum limit. 
If retired employees sign a statement that they are not 
available for nor seeking permanent employment, they may 
have temporary appointments for more than 12 months. 
"Retired" is defined as drawing a retirement income and/or 
social security benefits.) Employees with temporary 
appointments receive no benefits. 

Statutory Authority G.S. 126-4. 

.0408 INTERMITTENT APPOINTMENT 

An intermittent appointment may be made to positions 
needed only for intermittent periods of time. The intermit- 
tent service of an individual shall not exceed a total of nine 
months during any continuous 12-month period except 
during extreme emergencies when such periods of time shall 
be extended for the duration of the emergency. Such 
duration of time shall be at the discretion of the State 
Personn e l Dir e ctor retroactiv e to April 11. 1975. Employ- 
ees with intermittent appointments receive no benefits. 

Statutory Authority G.S. 126-4. 

SUBCHAPTER ID - COMPENSATION 

SECTION .0200 - NEW APPOINTMENTS 

.0201 INITIAL EMPLOYMENT 

(a) A new appointment is the initial employment of an 
individual to a position or the re-employment of individuals 
who are either not eligible for reinstatement or, at the 
agency's option, are not offered reinstatement. 

(b) An employee entering into state service in a perma- 
nent or time-limited permanent position shall be given a 
probationary or trainee appointment unless the employee is 
eligible for and the agency chooses to make reinstatement to 
permanent appointment status . The probationary and trainee 
appointment periods are intended to serve as an extension of 
the selection process and are used to determine whether the 
person will be able to meet acceptable performance stan- 
dards for the work for which employed. The employee will 
earn all the benefits of a an employee with a permanent 
appointment employee during this time. 

(c) The duration of a probationary appointment shall be 
not less than three nor more than none months of either full- 
time or part-time employment. The determination of the 
appropriate length will generally depend on the complexity 
of the position and the rate of progress of the employee. 
(This probationary period is not the same as the probation- 
ary period prescribed for criminal justice officers in 12 



NCAC 5 .0401.) The duration of the trainee appointment 
is established for each regular classification to which trainee 
appointment is made. 

(d) The conditions of the probationary and trainee 
appointments shall be clearly conveyed to the applicant prior 
to appointment. During the probationary or trainee period, 
the supen'isor has a responsibility to work closely with the 
employee in counseling and assisting the employee to 
achieve a satisfactory performance level; progress of the 
employee should be reviewed during discussions between 
the employee and the supervisor. Following the probation- 
ary period when the supervisor in consultation with other 
appropriate administrators determines that the employee's 
performance indicated capability to become a satisfactory 
performer and merits retention in the position, the employee 
shall be given a permanent appointment to the class. If the 
determination is that the employee's performance indicates 
that the employee is not suited for the position and cannot 
be expected to meet acceptable standards, it is expected that 
the employee would be separated from that position. 
Employees may also be separated during a probationary or 
trainee appointment for causes related to performance of 
duties or unacceptable personal conduct. Except in cases of 
discrimination, a dismissal under these conditions is not 
subject to the right of appeal to the State Personnel Commis- 
sion. 

Statutory Authority G.S. 126-4. 

.0205 EFFECTIVE DATE 

(a) A new employee may begin work on any scheduled 
workday in a pay period. When the first day of a pay 
period falls on a non-workday and the employee begins 
work on the first workday of a pay period, the date to begin 
work will be shown as the first of the pay period. 

(b) The effective date for change to permanent appoint- 
ment status shall be the date that it is determined that the 
employee meets acceptable performance standards, but not 
less than three months from the date of employment. 

Statutory Authority G.S. 126-4. 

.0207 QUALIFICATIONS 

The employee must possess at least the minimum educa- 
tion and experience requirements, or their equivalent, as set 
forth in the class specification. This applies to full-time and 
part-time permanent, probationary, trainee, time-limited and 
temporary, appointments, part time and where training 
requirements have been e s tablished in s pecific areas. 

Statutory Authority G.S. 126-4. 

.0211 SALARY RATE 

(a) The hiring rate of pay for a class, or trainee rate 
where applicable shall normally be paid a qualified new 
employee. When a special entry rate has been authorized, 
that rate may be paid a qualified new employee if the 



267 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



PROPOSED RULES 



agency has made a decision to use the new rate. 

(b) A salary above the hiring rate (or applicable special 
entry rate) may be requested on the initial appointment or at 
the timo the appointment is made permanent, but not to 
exceed — the maximum salary published in the vacancy 
announcem e nt, when: 

f4^ oxtensiv e recruitment efforts hav e not produo e d 

qualified applicants; or 

(1) warranted by operational needs or equal pay 
considerations; and 

(2) the applicant possesses exceptional qualifications 
above the hiring requirements of the class spoci 
fication, — and operational — needs exist which 
juotify filling the position at th e salary abov e th e 
minimum of th e rang e . — Th e additional e xperi 
once and training must bo in the same or clo s ely 
related area to that 3tatcd as acceptable in the 
claoo op e oifioation minimum requirements which 
are in the same or a closely related area. Gen- 
erally, up to five percent above the minimum 
rate may be considered for each qualifying year 
of directly related experience or education above 
the minimum requirements. 

(c) Appointments above the hiring rate are to be avoided 
if salary inequities would be created. This shall be consid- 
ered carefully in order to avoid present or future inequities. 

(d) If a specific salary limitation is published in the 
vacancy announcement because of lack of funds or equity 
considerations, the initial salary cannot be higher than 
posted. However, if it is determined that a higher salary is 
warranted based on qualification, the agency may state this 
on the PD-105 and if funds are available at the time a 
permanent appointment is given, the salary may be adjusted 
at that time. 

fd)(e) When an employee is given a permanent appoint- 
ment after successful completion of either the probationary 
period or the trainee period, if the initial salary is at the 
hiring rate or trainee rate, it shall be increased to the 
minimum rate of the range and may be increased to a higher 
rate if the conditions in Paragraph (b) of this Rule are met. 

(e)[f) If the salary is at an authorized special entry rate, 
it may be increased by five percent above the special entry 
rate. 

ff-)(g) If the employee is hired at a salary below an 
authorized special entry rate because the lower salary is 
sufficient to attract applicants but not sufficient to retain the 
employee once experience is gained, an adjustment up to the 
special entry rate may be made during or at the end of the 
probationary period or at such time as performance indi- 
cated that it is justified. 

fg-)fh) If the initial salary is above the hiring rate, the 
agency may elect to increase the salary by 5% or to a higher 
rate if the conditions in Paragraph (b) of this Rule are met. 

fh)(i) Only with the prior approval of the State Personnel 
Director and in well-documented cases which involve 
circumstances such as severe labor market conditions or 
extraordinary qualifications will salaries be considered 



which exceed the limits of this Section. 
Statutory Authority G.S. 126-4(2). 

SECTION .0800 - INITIAL CLASSIFICATION 

.0808 SALARY RATE 

(a) If the employee is given probationary status and the 
salary is below the hiring rate for the range assigned, it 
shall be adjusted to the new hiring rate. If the employee is 
given a permanent or time-limited permanent appointment 
status and the salary is below the minimum rate, it shall be 
adjusted to the minimum rate of the range assigned. 

(b) If the employee's salary falls within the range as- 
signed to the position, it shall remain unchanged. 

Statutory Authority G. S. 126-4, 

SECTION .1000 - REINSTATEMENT 

.1001 DEFINITION 

Reinstatement is: 

(1) the reemployment in with a permanent appoint- 
ment s tatu s of a former employee with a porma 
nent full-time or permanen t part-time (20 hours or 
more), permanent, trainee or time-limited appoint- 
ment e mploy ee with a break in service and within 
five years following the date of separation. 
Although the employee is eligible for reinstate- 
ment to permanent appointment statue , the agency 
head my choose to offer reemployment with a 
probationary appointment. The employee will 
meet all requirements of the probationary period 
the same as for original appointments; 

(2) the return to a nonpolicy-making position of an 
employee who transferred to or occupied a posi- 
tion designated as policy-making exempt. 

Statutory Authority G.S. 126-4. 

.1009 VETERANS 

Veterans. Employees with a permanent. P e rman e nt or 
probationary ^ or trainee appointment e mploy ee s who 
resigned or were granted leave without pay to serve in the 
Armed Services of the United States are eligible from 
reinstatement to the same position or one of like status, 
seniority and pay regardless of length of previous service. 
If, during military service, an employee is disabled to the 
extent that duties of the original position cannot be per- 
formed, the employee shall be reinstated to a position with 
duties commensurate with the disability, if any such position 
is available. 

Statutory Authority G.S. 126-4. 

SECTION .1200 - LONGEVITY PAY 



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268 



PROPOSED RULES 



.1201 PURPOSE 

The purpose of longevity pay is to recognize long-term 
service of p e rman e nt full-time and p e rman e nt part-time 
(half-time or more) employees with a permanent, probation- 
ary, trainee or time-limited appointment who have served at 
least ten years with the state. 

Statutory Authority G.S. 126-4. 

.1204 ELIGIBILITY REQUIREMENTS 

(a) An employee shall have at least ten years of total 
qualifying state service before being eligible for any longev- 
ity payments. 

(b) The employee must have a full-time permanent 
probationary, trainee or time-limited appointment. 

(c) An employee's earliest possible date of eligibility for 
a longevity payment is the date when ten years of total state 
service has been completed. If on the effective date of this 
policy an employee has completed the qualifying length of 
service but is somewhere between eligibility dates, longevity 
payment will not be made until the next longevity anniver- 
sary date. In succeeding years, a longevity payment will be 
made annually in the pay period in which the employee's 
longevity anniversary date falls. Periods of leave without 
pay in excess of one-half the workdays and holidays in a 
pay period with the exception of military leave and workers' 
compensation leave) will delay the longevity anniversary 
date. 

(d) Credit for the total service requirement shall not be 
given for temporary full-time or temporary part-time 
employment and periods of leave without pay in excess of 
one-half the workdays and holidays in a pay period, with the 
exception of military leave and workers' compensation 
leave. 

(e) Upon change of appointment to temporary or exempt 
(except as provided by statute), the employee is ineligible 
for continued longevity pay; hence, if the employee has 
worked part but not all of one year since the last annual 
longevity payment, a pro rata payment shall be made as if 
the employee were separating from state service provided 
the change is not of a temporary nature. If an employee 
goes on leave without pay, longevity shall not be paid until 
the employee returns and completes the full year. If, 
however, the employee should resign while on leave without 
pay, then the pro rata amount for which the employee is 
eligible is paid. Exceptions: 

(1) An employee going on leave without pay due to 
short-term disability may be paid the prorate 
amount for which the employee is eligible; 

(2) An employee going on extended military leave 
without pay shall be paid the prorate amount for 
which eligible; 

(3) An employee on workers' compensation leave 
shall be paid longevity as if working. 

(f) Partial Payments: 

(1) If an employee separates from a state agency 
and receives a partial longevity payment and is 



reinstated in another state agency, the balance of 
the longevity payment shall be made upon 
completion of additional service totaling 12 
months since the last full longevity payment, m 
The balance due is computed on the annual ^ 
salary being paid at the completion of the 12 
months. 
(2) If an employee comes to work in a position that 

is subject to the Personnel Act from a system 
(such as judicial, county, public schools, etc.) 
that has longevity policy which allows partial 
payments, it is the responsibility of the receiving 
state agency to verify that such payment was or 
was not made. Then the state agency would pay 
the remainder of the payment when the em- 
ployee is eligible, 
(g) Total state service is the time of full-time or part-time 
(half-time or over) employees with a permanent, trainee, 
probationary or provisional time-limited appointment 
employment , whether subject to or exempt from the State 
Personnel Act. If an employee so appointed is in pay status 
or is on authorized military leave for one-half of the 
regularly scheduled workdays and holidays in a in-a pay 
period, credit shall be given for the entire pay period. 
Employees will receive full credit for each pay period they 
are in pay status for one-half of their regularly scheduled 
workdays and holidays. Credit shall also be given for: 

(1) Employment with other governmental units 
which are now State agencies (Examples: county 
highway maintenance forces. War Manpower I 
Commission, Judicial System). 

(2) Authorized military leave from any of the gov- 
ernmental units for which service credit is 
granted provided the employee is reinstated 
within the time limits outlined in the State 
military leave policies. 

(3) Employment with the county Agricultural Exten- 
sion Service, Community College system and the 
public school system of North Carolina, with the 
provision that a school year is equivalent to one 
full year (credit for a partial year is given on a 
month for month basis of the actual months 
worked). 

(4) Employment with a local Mental Health, Public 
Health, Social Services or Emergency Manage- 
ment agency in North Carolina if such employ- 
ment is subject to the State Personnel Act. 

(5) Employment with the General Assembly (except 
for participants in the Legislative Intern Program 
and pages). All of the time, both permanent and 
temporary, of the employees will be counted. 
The full legislative terms of the members will 
also be counted. 

Statutory Authority G.S. 126-4(5), (10). 

SECTION .1400 - SHIFT PREMIUM PAY 



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PROPOSED RULES 



.1401 PURPOSE 

It is a policy of the state to provide additional compensa- 
tion for non-medically related employees through salary 
grade 69, for all employees in the position of Ferry Captain 
II in salary grade 70, and for medically related employees 
through salary grade 75 who are regularly scheduled to 
work on either an evening or night shift: 

(1) An employee with a A permanent, probationary^, 
er trainee or time-limited appointment employee 
who is eligible for shift premium pay shall receive 
premium pay for all hours in a shift worked in 
which more than half of the scheduled working 
hours occur between 4:00 p.m. and 8:00 a.m. on 
a regular recurring basis. 

(Exception: Employees in medically-related 
occupations who have a regularly recurring work 
schedule in excess of 8 hours each day shall be 
paid shift premium pay for the hours actually 
worked between 4:00 p.m. and 8:00 a.m., but 
only when determined necessary for classes to be 
competitive with relevant labor markets.) 
Interpretation: "Regularly recurring" shall be 
interpreted to mean a position that requires a daily 
schedule that is repeated at specified intervals for 
an indefinite period of time. In addition, an 
employee required to substitute in a position 
because of vacancy or the incumbent's absence 
that is eligible for shift premium shall receive such 
payment for time worked in that position. Shift 
premium pay shall not be paid to employees 
temporarily placed on a shift or to employees 
temporarily employed to work on a shift that 
normally receives such pay. 

(2) Employees shall not receive shift premium pay for 
hours not actually worked. This exclusion in- 
cludes such time periods as vacation leave, holi- 
days, sick leave, jury duty, and military leave. 

(3) Shift premium pay shall be granted in addition to 
any other premium pay to which the employee 
may be entitled, such as holiday pay. 

(4) Shift premium pay is not considered as a part of 
annual base pay for classification and pay pur- 
poses, nor is it to be recorded in personnel re- 
cords as a part of annual base salary. However, 
under the state's policy on hours of work and 
overtime compensation, shift premium pay must 
be included in the calculation of the regular hourly 
rate of pay for the purposes of computing over- 
time. 

(5) Split Shifts. An employee working a regularly 
recurring split shift shall receive premium pay in 
accordance with this Rule if more than half of the 
hours occur between 4:00 p.m. and 8:00 a.m. If, 
however, only half or less of the hours are in the 
stated period, the employee will receive shift 
premium pay only for the actual hours worked 
between 4:00 p.m. and 8:00 a.m. 



Statutory Authority G.S. 126-4; S.L. 1987, c. 738, s. 9; S.L. 
1988, c. 1086, s. 100. 

SECTION .1800 - EMPLOYMENT OF 
PHYSICIANS FOR EXTENDED DUTY 

.1801 PURPOSE 

Because of tho critical Critical shortage of coverage on 
evening and weekend shifts in certain medically related 
areas sometimes make it physicians, it is som e tim e s impos- 
sible to maintain an adequate staff of physicians to meet all 
workload requirements. In order to meet such workloads, 
a physician svho is an employee of the state who is exempt 
from the hours of work and overtime provisions of FLSA 
may, if he agrees, be scheduled to work additional hours 
beyond his regular work schedule. A list of professional 
medically related classed eligible to receive straight-time for 
extended duty beyond forty hours per week will be approved 
and maintained within the Office of State Personnel. 

Statutory Authority G.S. 126-4. 

.1802 PAYMENT 

(a) If such additional duty involves primarily the direct 
care and treatment of patients or other activities which can 
be performed only by the employee approved for extended 
duty a physician , the employee may be paid for such 
additional time on a straight time basis at a rate of pay to be 
determined by the nature of the duties to be performed. 
Thus, an employee's rate of pay during the additional hours 
of work may be either higher, lower, or the same as his 
established rate of pay. 

(b) Usually the source of funds for payment for such 
additional employment will be the funds provided for a 
vacant position. Such a position will have been planned 
with specific work assignments and will have a proper 
classification and pay level. In other cases, there may be 
available budgeted special funds for additional hours of such 
service. In these cases, it may become necessary to 
determine specifically what the work assignments are to be 
and to arrive, through proper evaluation, at the correct rate 
of pay for those duties. 

Statutory Authority G. S. 126-4. 

SECTION .2000 - UNEMPLOYMENT 
INSURANCE 

.2001 COVERAGE 

Effective January 1, 1978, the North Carolina General 
Assembly provided unemployment insurance coverage for 
all temporary and permanent state employees including 
temporary, except those exempted by G.S. 96-8(6)1. 

Statutory Authority G. S. 96-8(6)j; 96-81. 

SUBCHAPTER IE - EMPLOYEE BENEFITS 



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LIST OF RULES CODIFIED 



SECTION .0800 - MILITARY LEAVE 

.0804 PERIODS OF ENTITLEMENT FOR ALL 
RESERVE COMPONENTS 

(a) Military leave with pay shall be granted to full-time 
or part-time permanent, em ployees with a permanent, 
trainee, or probationary appointment trainee and proba 
tionary employees for up to 120 working hours (prorated 
for part-time employees) during the Federal fiscal year 
beginning October 1 and ending on September 30, for any 
type of active military duty for members not on extended 
active duty. 

(b) Although regularly scheduled unit assemblies 
occurring on weekends and referred to as "drills" do not 
normally require military leave, the employing agency is 
required to excuse an employee for all regularly scheduled 
military training duty. If necessary the employee's work 
schedule shall be appropriately rearranged to enable the 
employee to attend these assemblies. To determine the 
dates of these regularly scheduled unit assemblies, the 
employing agency may require the employee to provide a 
unit training schedule which lists training dates for a 
month or more in advance. Military leave with pay [from 
Paragraph (a) of this Rule] or vacation may be used if 
"drills" occur on weekdays. 

(c) An employee shall be granted necessary time off 
when the employee must undergo a required physical 
examination relating to membership in a reserve compo- 
nent without charge to leave. 

Statutory Authority G.S. 126-4(5). 

SUBCHAPTER IK - PERSONNEL TRAINING 



SECTION .0300 



EDUCATIONAL ASSISTANCE 
PROGRAM 



.0312 ELIGIBTLITY 

(a) Eligible Employees. Full-time or part-time employ- 
ees who have gain e d a permanent appointment status are 
eligible for this program. Trainees may be determined as 
eligible by management after satisfactory performance for 
a period of not less than three months. 

(b) Ineligible Employees. Employees m with a tempo- 
rary and or probationary appointment status or who do not 
meet the minimum educational and experience require- 
ments for the job are not eligible for educational assis- 
tance. Work-study requirements for trainees shall be 
administered in accordance with the extended educational 
leave policy. 

(c) Eligible Sources. Any accredited high school, 
business, community college, technical institute, college, 
university, correspondence school or other educational 
source approved by the State Personnel Director is 
eligible for selection. 

(d) Academic courses which are audited are eligible for 
educational assistance; however, an employee may be 
reimbursed for the same course or course equivalent only 
once. Reimbursement requires a statement written on 
school letterhead and signed by the instructor that the 
employee attended at least 85 percent of the scheduled 
class meetings during the academic term. 

Statutory Authority G.S. 126-4. 



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10:4 



LIST OF RULES CODIFIED 



J. he List of Rules 


Codified is a listing of rules that were filed with OAH in the month indicated. 


Key: 






Citation 




= Title, Chapter, Subchapter and Rule(s) 


AD 




= Adopt 


AM 




= Amend 


RP 




= Repeal 


With Chgs 




= Final text differs from proposed text 


Corr 




= Typographical errors or changes that requires no rulemaking 


Eff. Date 




= Date rule becomes effective 


Temp. Expires 


= Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 



TLE 


DEPARTMENT 


4 


Commerce 


7 


Cultural Resources 


10 


Human Resources 


13 


Labor 


15A 


Environment, Health, and 




Natural Resources 


16 


Public Instruction 



APRIL 95 




TITLE 


DEPARTMENT 


17 


Revenue 


18 


Secretary of State 


21 


Occupational Licensing Boards 




12 - General Contractors 




18 - Electrical Contractors 




42 - Optometry 




58 - Real Estate Commission 


23 


Community Colleges 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


4 NCAC 31 .0101 




/ 




/ 




05/01/95 




.0201 




/ 




/ 




05/01/95 




.0202 - .0203 






/ 






05/01/95 




.0204 




/ 




/ 




05/01/95 




.0205 - .0206 


/ 






/ 




05/01/95 




.0301 




/ 




/ 




05/01/95 




.0401 




/ 








05/01/95 




.0402 




/ 




/ 




05/01/95 




.0403 




/ 








05/01/95 




.0405 - .0406 




/ 




/ 




05/01/95 




.0501 




/ 




/ 




05/01/95 




.0502 




/ 








05/01/95 




.0503 




/ 




/ 




05/01/95 




.0601 - .0602 




/ 








05/01/95 







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May 15, 1995 



272 











LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


4 


NCAC 31 


.0702 - 


.0703 




/ 








05/01/95 




.0705 




/ 




/ 




05/01/95 




7 


NCAC 2E 


.0301 






/ 




/ 




05/01/95 




10 


NCAC 22J 


.0308 






/ 




/ 




05/01/95 






22R 


.0201 






/ 








05/01/95 




.0202 




/ 




/ 




05/01/95 






26H 


.0102 






/ 




/ 




05/01/95 




13 


NCAC 7F 


.0501 






/ 








05/01/95 




15A 


NCAC 2D 


.0104 






/ 




/ 




05/01/95 




.0501 










/ 






.0902 




/ 




/ 




05/01/95 




.0907 




/ 








05/01/95 








.0910 - 


.0911 




/ 








05/01/95 




.0950 




/ 








05/01/95 




.0952 




/ 








05/01/95 




.0954 




/ 




/ 




05/01/95 








.0955 - 


.0956 










/ 






.1206 










/ 










.1405 - 


.1408 










/ 






.1501 










/ 








2K 


.0502 












/ 








2Q 


.0112 












/ 








10B 


.0113 






/ 








07/01/95 








.0204 - 


.0206 




/ 








07/01/95 




.0209 




/ 




/ 




07/01/95 






IOC 


.0203 






/ 




/ 




07/01/95 




.0205 




/ 




/ 




07/01/95 




.0305 




/ 








07/01/95 




.0305 




/ 




/ 




07/01/95 




.0401 




/ 








07/01/95 




.0401 




/ 




/ 




07/01/95 




.0404 




/ 








07/01/95 




.0407 




/ 








07/01/95 







273 



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May 15, 1995 



10:4 









LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A 


NCAC 10D 


.0003 - .0004 




/ 




/ 




07/01/95 






10E 


.0004 




/ 




/ 




07/01/95 






10F 


.0330 




/ 




/ 




05/01/95 






10H 


.0801 




/ 








05/01/95 




.0807 - .0808 




/ 








05/01/95 






10K 


.0002 




/ 








05/01/95 






11 


.0104 




/ 




/ 




05/01/95 




.0117 




/ 








05/01/95 




.0343 




/ 




/ 




05/01/95 




.0350 - .0351 




/ 








05/01/95 




.0356 


/ 






/ 




05/01/95 




.0357 


/ 










05/01/95 




.0502 




/ 








05/01/95 




.0503 




/ 




/ 




05/01/95 




.0504 - .0509 




/ 








05/01/95 




.0510 - .0512 




/ 




/ 




05/01/95 




.0513 - .0514 




/ 








05/01/95 




.0515 




/ 




/ 




05/01/95 




.0517 - .0520 




/ 








05/01/95 




.0521 - .0523 


/ 










05/01/95 




.1625 




/ 








05/01/95 




16 


NCAC 6C 


.0207 




/ 




/ 




07/01/95 




17 


NCAC 1C 


.0504 - .0505 




/ 








05/01/95 






7B 


.1123 




/ 








05/01/95 




.5445 






/ 






05/01/95 






9G 


.0202 






/ 






05/01/95 






9J 


.0204 






/ 






05/01/95 




18 


NCAC 6 


.1201 




• 








05/01/95 




.1210 




/ 








05/01/95 




21 


NCAC 12 


.0208 


/ 










05/01/95 




.0506 




/ 








05/01/95 






18B 


.0901 










/ 








42B 


.0107 




/ 








05/01/95 







10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



274 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 


NCAC 42B 


.0110 






/ 








05/01/95 






58A 


.0403 






/ 








04/24/95 


180 DAYS 






.0503 - 


.0504 




/ 








04/24/95 


180 DAYS 


23 


NCAC 2E 


.0604 




/ 






/ 




05/01/95 





i 



275 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



RRC OBJECTIONS 



J he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 150B-21.9(a). State 
agencies are required to respond to RRC as provided in G.S. 150B-21. 12(a). 



DEPARTMENT OF COMMERCE 
Banking Commission 

4 NCAC 31 .0101 - Definitions; Filings 

Agency Revised Rule 
4 NCAC 31 .0402 - Annual Statement 

Agency Revised Rule 

DEPARTMENT OF CULTURAL RESOURCES 

Art Works in State Buildings Program 

7 NCAC 12 .0002 - Transfer of Funds 

Rule Withdrawn by Agency 
7 NCAC 12 .0003 - Program Administration 

Rule Withdrawn by Agency 
7 NCAC 12 .0005 - Selection, Installation , and Maintenance 

Rule Withdrawn by Agency 
7 NCAC 12 .0006 - Maintenance, Repair and Conservation 

Rule Withdrawn by Agency 

Division of State Library 

7 NCAC 2E .0301 - Qualifications for Grants 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health 

15 A NCAC 16A .0104 - Co-Payments 

Agency Revised Rule 
15A NCAC 16A .0109 - Covered Services 

Agency Revised Rule 

Coastal Management 

15 A NCAC 7H .0308 - Specific Use Standards For Ocean Hazard Areas 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15 A NCAC 7M .0202 - Policy Statements 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

Environmental Health 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Cont'd 



Eff 



RRC Objection 
Obj. Cont'd 



04/20/95 
04/20/95 
04/20/95 
04/20/95 



03/16/95 
03/16/95 
03/16/95 
03/16/95 



04/20/95 
04/20/95 



Eff 



03/16/95 
03/16/95 
03/16/95 
03/16/95 



03/16/95 
04/20/95 
04/20/95 
05/04/95 
03/16/95 
04/20/95 
05/04/95 



15 A NCAC 18A .2801 - Definitions 

Rule Approved as Written 
15 A NCAC 18A .2810 - Specifications for Kitchens, Based on Number/Children 

Agency Revised Rule 
15 A NCAC 18A .3204 - Sewage Disposal 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



01/19/95 
02/16/95 

01/19/95 
02/16/95 
03/16/95 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



276 



RRC OBJECTIONS 



Agency Revised Rule 
15 A NCAC 18A .3209 - Tattooing Procedures 
Agency Revised Ride 



Obj. Removed 
RRC Objection 
Obj. Removed 



03/16/95 
03/16/95 
03/16/95 



Environmental Management 

15 A NCAC 2D .0902 - Applicability RRC Objection 04/20/95 

Agency Revised Rule Obj. Removed 04/20/95 

15A NCAC 2D . 1204 - Reporting and Recordkeeping RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

15A NCAC 2D .1404 - Recordkeeping: Reporting: Monitoring RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

15A NCAC 2D . 1407 - Non-Utility Boilers and Process Heaters RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

15A NCAC 2D . 1414 - Tune-Up Requirements RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

15A NCAC 2K .0501 - Definitions RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

15 A NCAC 2D .0502 - Required Minimum Flow for Dams (Not Small Hydro Projects) RRC Objection 03/16/95 

Agency Revised Rule Obj. Removed 03/16/95 

Parks and Recreation Area Rules 



15A NCAC 12K .0103 - Funding Cycle 

Agency Revised Rule 
15A NCAC 12K .0104 - Application Schedule 

Agency Revised Rule 
15A NCAC 12K .0105 - Evaluation of Applications 

Agency Revised Rule 
15.4 NCAC 12K .0106 - Grant Agreement 

Agency Revised Rule 
15A NCAC 12K .0111 - Program Acknowledgment 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 



Radiation Protection 



15A NCAC 11 .0104 - Definitions 

Agency Revised Rule 
15A NCAC 11 .0503 - Equipment Radiation Level Limits 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/20/95 
04/20/95 
04/20/95 
04/20/95 



Wildlife Resources and Water Safety 



15A NCAC IOC .0205 - Public Mountain Trout Waters 

Agency Revised Rule 
15 A NCAC 10F .0330 - Carteret County 

Agency Revised Rule 
15A NCAC 10K .0001 - Course Requirements 

Rule Withdrawn by Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/20/95 
04/20/95 
04/20/95 
04/20/95 

04/20/95 



HUMAN RESOURCES 

Aging 



10 NCAC 22R .0202 - County Funding Plans 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/20/95 
04/20/95 



277 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



RRC OBJECTIONS 



Facility Services 

10 NCAC 3R .3030 - Facility and Service Need Determinations 

Agency Revised Rule 
10 NCAC 3U . 1001 - Seat Restraints 

Agency Revised Rule 



Medical Assistance 

10 NCAC 26H .0104 

Rule Withdrawn 
10 NCAC 26M .0301 

Agency Revised 
10 NCAC 26M .0302 

Agency Revised 
10 NCAC 26M .0303 
10 NCAC 26M .0304 

Agency Revised 
10 NCAC 26M .0305 

Agency Revised 
10 NCAC 26M .0306 

Agency Revised 
10 NCAC 26M .0307 

Agency Revised 
10 NCAC 26M .0308 

INSURANCE 



- Cost Reporting: Auditing and Settlements 
by Agency 

- Program Definition 
Rule 

- Access to Care 
Rule 

- Patient Informing 

- Relationship with Carolina Access 
Rule 

- Relationship with EPSDT program 
Rule 

- Relationship with Sub-Contractors 
Rule 

- Utilization Review Requirements 
Rule 

- Enrollee and Sub-Contractor Appeals and Grievances 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



03/16/95 
03/16/95 
03/16/95 
03/16/95 



04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 
04/20/95 



Actuarial Services Division 

11 NCAC 16 .0601 - Definitions 

Agency Revised Rule 
11 NCAC 16 .0602 - HMO General Filing Requirements 

Agency Revised Rule 
11 NCAC 16 .0607 - HMO Incurred Loss Ratio Standards 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Board of Cosmetic Art Examiners 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 
03/16/95 



21 NCAC 14F .0014 - Salon Renewal RRC Objection 

No Response from Agency Obj. Cont'd 

21 NCAC 141 .0401 - App. for Lie. by Individuals Who Have Been Convicted of a Felony RRC Objection 
No Response from Agency Obj. Cont'd 

21 NCAC 141 .0402 - Requests for Preapplication Review of Felony Convictions RRC Objection 

No Response from Agency Obj. Cont'd 



Board of Examiners of Electrical Contractors 

21 NCAC 18B .0901 - Applicants Convicted of Crimes 
No Response from Agency 
Agency Revised Rule 

Licensing Board for General Contractors 



RRC Objection 
Obj. Cont'd 
Obj. Removed 



03/16/95 
04/20/95 
03/16/95 
04/20/95 
03/16/95 
04/20/95 



01/19/95 
02/16/95 
03/16/95 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



278 



RRC OBJECTIONS 



RRC 


Objection 


11/17/94 


Obj. 


Com 'd 


11/17/94 


Obj. 


Cont 'd 


12/15/94 


Obj. 


Com 'd 


01/19/95 


Obj. 


Com 'd 


02/16/95 
03/16/95 



21 NCAC 12 .0701 - Improper Practice 

Rule Withdrawn by Agency 04/20/95 

Board of Opticians 

21 NCAC 40 .0314 - Apprenticeship and Internship Requirements; Registration 
Agency Revised Rule 
No Response from Agency 
Agency Responded 
No Response from Agency 
Rule Returned to Agency 

PUBLIC EDUCATION 

Elementary and Secondary Education 

16 NCAC 6C .0207 - Prospective Teacher Scholarship Loans 

Agency Responded 
Agency Revised Rule 

REVENUE 

Sales and Use Tax 

17 NCAC 7B .1123 - Certain Sales to Commercial Livestock and Poultry Farmers RRC Objection 03/16/95 

Obj. Removed 04/20/95 

17 NCAC 7B .5436 - Farmer's Certificate Form: E-599 RRC Objection 03/16/95 

Agency Repealed Rule Obj. Removed 03/16/95 

17 NCAC 7B .5437 - Veterinarian 's Certificate Form: E-567 RRC Objection 03/16/95 

Agency Repealed Rule Obj. Removed 03/16/95 

17 NCAC 7B .5445 - Commercial Swine. Livestock/Poultry Farmers' Cert. Form: E-599S RRC Objection 03/16/95 

Agency Repealed Rule Obj. Removed 04/20/95 
17 NCAC 7B .5462 - Ice Certificate Form 

Rule Withdrawn by Agency 03/16/95 

SECRETARY OF STATE 



RRC Objection 
Obj. Cont'd 
Obj. Removed 



02/16/95 
03/16/95 
04/20/95 



Notary Public Division 

18 NCAC 7 .0301 - Approved Course of Study 
No Response from Agency 
Rule Returned to Agency 

18 NCAC 7 .0302 - Instructors 
No Response from Agency- 
Rule Returned to Agency 



RRC 


Objection 


12/15/94 


Obj. 


Cont 'd 


01/19/95 


Obj. 


Cont 'd 


02/16/95 


RRC 


Objection 


12/15/94 


Obj. 


Cont 'd 


01/19/95 


Obj. 


Cont 'd 


02/16/95 



279 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CONTESTED CASE DECISIONS 



lhis Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



94 ABC 0787 


Gray 


03/17/95 


94 ABC 1168 


Becton 


03/07/95 


94 ABC 1661 


West 


05/01/95 


94 ABC 1694 


Mann 


03/29/95 


94 ABC 1784 


Mann 


04/19/95 


94 ABC 1803 


Mann 


04/07/95 


95 ABC 0210 


Gray 


05/01/95 



ADMINISTRATION 

Division of Purchase and Contract 

Senter-Sanders Tractor Corp. v. Admin., Div of Purchase & Contract 94 DOA 0803 Nesnow 

State Construction Office 

W. M. Piatt & Company v. State Construction Office, DOA 94 DOA 0738 Nesnow 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Norman D. Forbes v. Alcoholic Beverage Control Commission 
Albert Stanley Tomanec v. Alcoholic Beverage Control Commission 
Robert Johnson v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Depot Stop N Go, Inc. 
Bryan Lynn Whitaker, Susan Ansley Whitaker v. ABC Commission 
Diamond Club, Inc. v. Alcoholic Beverage Control Commission 
Ray E. Bailey v. Alcoholic Beverage Control Commission 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

John Pavlikianidis v. Victims Compensation Commission 
Wayne L. Utley v. Crime Victims Compensation Commission 
Kxistine S. Ray v. Crime Victims Compensation Commission 
Shirley Moody Myers v. Crime Victims Compensation Commission 
Thomasine Inman v. Crime Victims Compensation Commission 
Irmgard Gordos v. Crime Victims Compensation Commission 
Ellen Sherwin v. Crime Vic Comp James By rum Emp/ Baptist Hosp 

ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 



Setzer Bros. Inc. v. Environment, Health, and Natural Resources 94 EHR 1676 Nesnow 

John W. VanHoy, Jr. & Adjacent Land Owners v. EHNR 95 EHR 0016 Phipps 

and 
Shugart Enterprises, Inc. 

Coastal Resources 



94 CPS 0237 


Morrison 


94 CPS 1180 


Becton 


94 CPS 1673 


Chess 


94 CPS 1674 


Chess 


94 CPS 1731 


Nesnow 


94 CPS 1782 


Gray 


95 CPS 0012 


West 



03/06/95 



04/11/95 



03/21/95 
03/07/95 
04/20/95 
04/20/95 
03/09/95 
03/09/95 
03/22/95 



03/09/95 
03/17/95 



10:3 NCR 221 



10:2 NCR 176 



Howard C. Slack v. Coastal Resources Comm, EHNR 

Davidson County Health Department 

John Dee Clodfelter v. Davidson County Health Dept.; EHNR 

Environmental Health 

EEE-ZZZ Lay Drain Compnay, Inc. v. On-Site Wastewater Section, 
Division of Environmental Health 



95 EHR 0140 Phipps 



94 EHR 1037 Chess 



94 EHR 0745 Chess 



03/22/95 



03/13/95 



04/24/95 



10:2 NCR 185 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



280 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 

M'MBK.K 



ALJ 



DATE OF 

DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Management 

Empire Power Co. and George Clark v, EHNR, Div. of Env. Mgmt. 
and 
Duke Power Company 

Empire Power Co. and George Clark v. EHNR. Div, of Env. Mgmt. 
and 
Duke Power Company 



92 EHR 0021-' Gray 



92 EHR 0053*' Gray 



94 EHR 0924 Gray 



Hyde County Health Department 

Fritzner Henry v. Hyde County Health Department 

Macon County Health Department 

Four Residents on Genva Circle v. Macon County Health Department 94 EHR 1202 Nesnow 

Maternal and Child Health 

Philip Haskins \. EHNR, Div. of Maternal & Child Health 94 EHR 1777 Chess 

Xew Hanover County Health Department 

Gus Kalogiros v. New Hanover Co. (Health Dept.). Adm &. Env. Svcs 94 EHR 1073 Morrison 

EQUAL EMPLOYMENT OPPORTUNITY 

Marsha Dianne McKoy v. DHR, Div. of MH/DD/SAS, Caswell Center 90 EEO 0379 Chess 

HUMAN RESOURCES 

Helen J. Walls, D/B/A Walls Young World v. Human Resources 94 DHR 1362 Beeton 



04/03/95 



04/03/95 



03/09/95 



03/27/95 



03/09/95 



04,78/95 



04/03/95 



03/20/95 



94 DHR 0849 
94 DHR 1771 



94 DHR 0565 
94 DHR 1783 



Mann 
Reilly 



Gray 
Gray 



Division of Child Development 

lola Malloy V. DHR, Division of Child Development 
Esther Elder v. DHR. Division of Child Development 

Facility Services 

William H. Cooke v. DHR, Division of Facility Services 
Mildred Reece, Calvin Reece v. DHR, Division of Facility Svcs, 
Domiciliary & Group Care Section 

Bingo Licensure Section 



The Regular Veterans Association of the United States and the Sixteen 95 DHR 0040 Morrison 
Posts of the Regular Veterans Association of the United States and the 
Regular Veterans Association Auxiliary Located in the State of North 
Carolina v. DHR. Division of Facility Services, Bingo Licensure Section 

Certificate of Need Section 

The Carrolton of Fayetteville, Inc. and Highland House of Fayetteville. 94 DHR 0197* : Reilly 

Inc. and Richard Allen, Sr. v. DHR, Division of Facility Services, 

Certificate of Need Section 
and 

Pine Manor Rest Home, Inc., d/b/a Pine Manor Health Care 
The Carrolton of Fayetteville, Inc. and Highland House of Fayetteville, 94 DHR 0198* 2 Reilly 

Inc. and Richard Allen, Sr. v. DHR, Division of Facility Services, 

Certificate of Need Section 
,m,l 

Pine Manor Rest Home. Inc., d/b/a Pine Manor Health Care 



03/03/95 
03/17/95 



03/16/95 
03/16/95 



04/13/95 



04/05/95 



04/05/95 



• Consolidated cases. 



281 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CONTESTED CASE DECISIONS 



AGENCY 



J 



Retirement Villages, Inc. (Lessor), and Liberty Healthcare Ltd. 
Partnership (Lessee) D/B/A Countryside Villa of Duplin v. DHR, 
Division of Facility Services, Certificate of Need Section 

and 
Beaver Properties/Wallace, Inc., and Brian Center Health & Retirement/ 
Wallace, Inc. 



CASE 
NUMBER 



94 DHR 0403 



AI.J 



Chess 



DATE OF 
DECISION 



12/14/94 



PUBLISHED DECISION 
REGISTER CfTATION 



> 



> 



Division of Social Services 

Child Support Enforcement Section 

Daniel J. Carter v. Department of Human Resources 

Shawn Dominic Caldwell v. Department of Human Resources 

William Zonta Thompson v. Department of Human Resources 

Jackie E. Hackney v. Department of Human Resources 

Elbert Quick v. Department of Human Resources 

Clement McMillan v. Department of Human Resources 

James R. Gray v. Department of Human Resources 

Lacy Green, Jr. v. Department of Human Resources 

Leon McNair v. Department of Human Resources 

Edwin A. Clarke v. Department of Human Resources 

Wolfgang R. Walker v. Department of Human Resources 

Wyatt Rosehoro v. Department of Human Resources 

Lloyd Lane Speake v. Department of Human Resources 

Richard L. Hiott v. Department of Human Resources 

Henry C. Banks v. Department of Human Resources 

Lucille B. Dutter V. Department of Human Resources 

Charles Bascom Kiker v. Department of Human Resources 

Wade E. Hampton v. Department of Human Resources 

Gary Jay Stocks v. Department of Human Resources 

Paul E. Strawcutter v. Department of Human Resources 

Cary G. Dannelly v. Department of Human Resources 

Robert G. Baker v. Department of Human Resources 

Bernard T. Wade v. Department of Human Resources 

Timothy Brian Eller v. Department of Human Resources 

Morgan Pate, Jr. v. Department of Human Resources 

Robert E. Dudley, Sr. v. Department of Human Resources 

Julian Lattimore v. Department of Human Resources 

James McFadden v. Department o( Human Resources 

John C. Kay v. Department of Human Resources 

Raymond B. Clontz Jr. v. Department of Human Resources 

James C. Rogers v. Department of Human Resources 

Ruby Fewell Henry v. Department of Human Resources 

Richard Dill v. Department of Human Resources 

Ted C. Jenkins v. Department of Human Resources 

Anthony J. Gibbons v. Department of Human Resources 

Aaron C. Harris v. Department of Human Resources 

Donald L. Costello Sr. v. Department of Human Resources 

Kelvin L. Lankford V. Department of Human Resources 

Jeffrey Thomas Chambers v. Department of Human Resources 

Robert J. Holden v. Department of Human Resources 

Michael L. Wright v. Department of Human Resources 

Terry S. Gurganus v. Department of Human Resources 

John Napoleon Window Cross Pullium v. Dept of Human Resources 

Michael J. Montroy v. Department of Human Resources 

Dennis L. Moore v. Department of Human Resources 

James Edward Knox, Jr. v. Department of Human Resources 

David House v. Department of Human Resources 

Aqustin S. Sanchez v. Department of Human Resources 

Ricky Ratliff v. Department of Human Resources 

Willie McNeil Jr. v. Department of Human Resources 

Ray Douglas Brickhouse v. Department of Human Resources 

Tyron G. Moore v. Department of Human Resources 

Paul A. Card v. Department of Human Resources 

Damn Yancey v. Department of Human Resources 

Douglas L. Lucas v. Department of Human Resources 

Gregory D. Simpson v. Department of Human Resources 



91 CSE 


1103 


Morrison 


03/03/95 


92 CSE 


1449 


Reilly 


03/29/95 


92 CSE 


1559 


Reilly 


03/29/95 


93 CSE 


1088 


Chess 


03/20/95 


93 CSE 


1169 


Chess 


03/08/95 


93 CSE 


1208 


Chess 


03/08/95 


93 CSE 


1268 


Chess 


03/08/95 


93 CSE 


1295 


Chess 


03/08/95 


93 CSE 


1317 


Becton 


04/04/95 


93 CSE 


1319 


Chess 


03/08/95 


93 CSE 


1374 


Gray 


04/28/95 


93 CSE 


1423 


Becton 


04/25/95 


93 CSE 


1451 


Chess 


03/22/95 


93 CSE 


1509 


Mann 


04/21/95 


93 CSE 


1556 


Chess 


03/22/95 


93 CSE 


1558 


Chess 


03/13/95 


93 CSE 


1561 


Mann 


04/21/95 


93 CSE 


1593 


Chess 


04/20/95 


93 CSE 


1652 


Chess 


03/21/95 


93 CSE 


1713 


Mann 


03/13/95 


94 CSE 


1033 


Nesnow 


03/24/95 


94 CSE 


1094 


Chess 


03/06/95 


94 CSE 


1101 


Becton 


04/03/95 


94 CSE 


1119 


Reilly 


03/29/95 


94 CSE 


1127 


Mann 


03/20/95 


94 CSE 


1128 


Mann 


03/31/95 


94 CSE 


1131 


Reilly 


03/13/95 


94 CSE 


1132 


West 


03/14/95 


94 CSE 


1143 


Chess 


04/13/95 


94 CSE 


1149 


Nesnow 


03/03/95 


94 CSE 


1153 


Gray 


04/04/95 


94 CSE 


1157 


Nesnow 


03/16/95 


94 CSE 


1195 


Mann 


03/29/95 


94 CSE 


1218 


Gray 


03/15/95 


94 CSE 


1219 


Gray 


03/15/95 


94 CSE 


1225 


Reilly 


04/10/95 


94 CSE 


1228 


West 


03/17/95 


94 CSE 


1229 


West 


03/17/95 


94 CSE 1231 


Nesnow 


03/03/95 


94 CSE 


1232 


Nesnow 


03/15/95 


94 CSE 


1237 


Gray 


03/15/95 


94 CSE 


1239 


Gray 


03/02/95 


94 CSE 


1241 


Gray 


03/15/95 


94 CSE 


1244 


Morrison 


03/13/95 


94 CSE 


1249 


Morrison 


03/02/95 


94 CSE 


1254 


Reilly 


03/13/95 


94 CSE 


1256 


Reilly 


03/15/95 


94 CSE 


1259 


West 


03/06/95 


94 CSE 


1261 


West 


03/17/95 


94 CSE 


1262 


West 


03/17/95 


94 CSE 


1263 


West 


03/17/95 


94 CSE 


1264 


West 


03/17/95 


94 CSE 


1266 


Nesnow 


03/13/95 


94 CSE 


1269 


Nesnow 


03/15/95 


94 CSE 


1270 


Nesnow 


03/15/95 


94 CSE 


1272 


Becton 


03/15/95 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



282 



CONTESTED CASE DECISIONS 



a<;km v 



Michael Lynn Avery v. Department of Human Resources 

Elvis M. Graham v. Department of Human Resources 

Shawn Fonville v. Department of Human Resources 

James Lee, Jr. v. Department of Human Resources 

Noah L. Houston, Sr. v. Department of Human Resources 

Shannon Vanderaa v. Department of Human Resources 

Anthony Murray v. Department of Human Resources 

Tommy L. Burchfield v. Department of Human Resources 

Gregory A. Rodrigues v. Department of Human Resources 

Larry R. Bales v. Department of Human Resources 

Karl Philip Jursen v. Department of Human Resources 

Otis Lewis Jr. v. Department of Human Resources 

Robert F. Catoe Jr. v. Department of Human Resources 

William Anthony Winchester v. Department of Human Resources 

Aaron L. Clark v. Department of Human Resources 

Vincent R. Valles Sr. v. Department of Human Resources 

Gary W. Gibson v. Department of Human Resources 

Mark A. West v. Department of Human Resources 

John E. Bolas Jr. v. Department of Human Resources 

Gary C. Wiggins v. Department of Human Resources 

Rhonnie J. Williams v. Department of Human Resources 

Danny Ray Hensley v. Department of Human Resources 

David C. Glenn v. Department of Human Resources 

Ivy M. Harvell v. Department of Human Resources 

Terry L. McMillon v. Department of Human Resources 

Garry G. Hickman v. Department of Human Resources 

Willie Herring v. Department of Human Resources 

Joe C. Dean v. Department of Human Resources 

Jimmie E. Barnes v. Department of Human Resources 

Cecilia Carmosino v. Department of Human Resources 

Marvin F. Walker v. Department of Human Resources 

Richard J. Almeida v. Department of Human Resources 

Michael R French v. Department of Human Resources 

John A. Jackson v. Department of Human Resources 

Michael R. Roberts v. Department of Human Resources 

Cleothis B. Smith v. Department of Human Resources 

Leroy Johnson Jr. v. Department of Human Resources 

James Patterson v. Department of Human Resources 

Thomas Colon v. Department of Human Resources 

Walter Swirniak Jr. v. Department of Human Resources 

Marion Rodriguez v. Department of Human Resources 

Jerry L. White Sr. v. Department of Human Resources 

Dennis James Grimes v. Department of Human Resources 

Scott John Tozzi v. Department of Human Resources 

Roger A. Eaton v. Department of Human Resources 

Willie J. Rowers Jr. v. Department of Human Resources 

Jeffrey James Spence v. Department ot Human Resources 

Byron C. Alston v. Department of Human Resources 

Oliver Lee Wolfe Sr. v. Department of Human Resources 

James Tracy Strickland v. Department of Human Resources 

Michael K. Reese v. Department of Human Resources 

Richard G. Medford, Jr. v. Department of Human Resources 

Theresa Strader v. Department of Human Resources 

James F. Williams v. Department of Human Resources 

Kennedy C. Uzomba v. Department of Human Resources 

Marion A. Ward v. Department of Human Resources 

Samuel A. Lewis v. Department of Human Resources 

Robert L^e Wall v. Department of Human Resources 

James M. Breaden Jr. v. Department of Human Resources 

Peter G. Coley v. Department of Human Resources 

Benjamin Nuriddin v, Department of Human Resources 

Robert L. Carter v. Department of Human Resources 

Danny Columbus Baker v. Department of Human Resources 

Duke William Dupre' v. Department of Human Resources 

Audrey Jennings v. Department of Human Resources 

Michael A. Camp v. Department o\' Human Resources 

Martin J. Miller v. Department of Human Resources 

Willie Cherry, Jr v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


94 CSE 


1274 


Becton 


03/15/95 


94 CSE 


1275 


Becton 


03/15/95 


94 CSE 


1277 


Becton 


03/06/95 


94 CSE 


1280 


Chess 


04/10/95 


94 CSE 


1284 


Chess 


04/26/95 


94 CSE 


1286 


Mann 


03/21/95 


94 CSE 


1287 


Mann 


03/21/95 


94 CSE 


1289 


Mann 


03/21/95 


94 CSE 


1300 


Mann 


03/21/95 


94 CSE 


1302 


Gray 


03/02/95 


94 CSE 


1303 


Gray 


03/15/95 


94 CSE 


1314 


Mann 


03/21/95 


94 CSE 


1329 


Morrison 


03/15/95 


94 CSE 


1331 


Reilly 


03/15/95 


94 CSE 


1332 


Reilly 


03/15/95 


94 CSE 


1333 


West 


03/17/95 


94 CSE 


1334 


West 


03/06/95 


94 CSE 


1335 


West 


03/17/95 


94 CSE 


1336 


Nesnow 


03/15/95 


94 CSE 


1338 


Nesnow 


03/15/95 


94 CSE 


1339 


Becton 


03/15/95 


94 CSE 


1340 


Becton 


03/15/95 


94 CSE 


1343 


Chess 


04/20/95 


94 CSE 


1345 


Mann 


03/21/95 


94 CSE 


1346 


Mann 


03/21/95 


94 CSE 


1348 


Gray 


03/15/95 


94 CSE 


1350 


Morrison 


03/02/95 


94 CSE 


1351 


Morrison 


03/15/95 


94 CSE 


1352 


Reilly 


03/03/95 


94 CSE 


1354 


West 


03/17/95 


94 CSE 


1355 


West 


03/17/95 


94 CSE 


1357 


Nesnow 


03/15/95 


94 CSE 


1359 


Becton 


03/15/95 


94 CSE 


1370 


Mann 


03/07/95 


94 CSE 


1371 


Mann 


03A21/95 


94 CSE 


1373 


Gray 


03/15/95 


94 CSE 


1377 


Mann 


03/31/95 


94 CSE 


1378 


Morrison 


03/15/95 


94 CSE 


1379 


Reilly 


03/15/95 


94 CSE 


1382 


West 


03/17/95 


94 CSE 


1385 


Nesnow 


03/03/95 


94 CSE 


1387 


Nesnow 


03/15/95 


94 CSE 


1388 


Becton 


03/15/95 


94 CSE 


1389 


Becton 


03/15/95 


94 CSE 


1392 


Gray 


03/09/95 


94 CSE 


1393 


Morrison 


03/15/95 


94 CSE 


1394 


Reilly 


03/15/95 


94 CSE 


1396 


Nesnow 


03/03/95 


94 CSE 


1397 


Mann 


03/31/95 


94 CSE 


1398 


Mann 


03/31/95 


94 CSE 


1412 


Gray 


03/31/95 


94 CSE 


1415 


Morrison 


03/02/95 


94 CSE 


1416 


Morrison 


03/21/95 


94 CSE 


1417 


Morrison 


03/21/95 


94 CSE 


1420 


Reilly 


04/03/95 


94 CSE 


1421 


Reilly 


03/03/95 


94 CSE 


1424 


Reilly 


04/03/95 


94 CSE 


1425 


West 


03/31/95 


94 CSE 


1426 


West 


03/31/95 


94 CSE 


1427 


West 


03/31/95 


94 CSE 


1429 


West 


03/31/95 


94 CSE 


1430 


Nesnow 


03/24/95 


94 CSE 


1431 


Nesnow 


03/24/95 


94 CSE 


1432 


Nesnow 


03/24/95 


94 CSE 


1433 


Nesnow 


03/24/95 


94 CSE 


1435 


Becton 


03/06/95 


94 CSE 


1436 


Becton 


03/06/95 


94 CSE 


1439 


Chess 


03/03/95 



PUBLISHED DECISION 
REGISTER CITATION 



i 



< 



283 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CONTESTED CASE DECISIONS 



> 



I 



> 



AGENCY 



William V. Glennon v. Department of Human Resources 

Alaster Williams v. Department of Human Resources 

Henry L. Gibbs v. Department of Human Resources 

Roger Gene Fehlhaber v. Department of Human Resources 

Beau L. Miller v. Department of Human Resources 

Claude E. Alston v. Department of Human Resources 

Elizabeth F. West v. Department of Human Resources 

John H. Underwood v. Department o{ Human Resources 

James T. Dudley Jr. v. Department of Human Resources 

Lori Davis Humphrey v. Department of Human Resources 

Robert L. Freeland, Jr. v. Department of Human Resources 

Antonio Darden (TV-D #1237637) v. Department of Human Resources 

Antonio Darden (IV-D #12801 16) v. Department of Human Resources 

Antonio Darden (IV-D #1233347) v. Department of Human Resources 

Cyrus R. Luallen v. Department of Human Resources 

Harold Dean Horn v. Department of Human Resources 

James B. Miller v. Department of Human Resources 

Glenn Allison v. Department of Human Resources 

Louis R. Salamone v. Department of Human Resources 

Randy Norris Willis v. Department of Human Resources 

Michael E. Bellamy v. Department of Human Resources 

Eddie James Johnson v. Department of Human Resources 

Coley C. Matthews v. Department of Human Resources 

Willie J. Gadson v. Department of Human Resources 

Donald Lee Barcliff v. Department of Human Resources 

James W. Nunnery v. Department of Human Resources 

William Leroy Watkins v. Department of Human Resources 

Peter Ian Oliveira v. Department of Human Resources 

Ronald E. Lewis v. Department of Human Resources 

Wesley Kelvin Cook v. Department of Human Resources 

Carlos L. Robinson v. Department of Human Resources 

Eddie O. Toro v. Department of Human Resources 

Volna Ramone Gales v. Department of Human Resources 

Bruce Kelly Jacobs v. Department of Human Resources 

Tony Collins v. Department of Human Resources 

Ronald O. Biggs v. Department of Human Resources 

Keith Dewayne Senters v. Department of Human Resources 

Marvin B. Harris v. Department of Human Resources 

Jay C. Edwards, IH v. Department of Human Resources 

Mahalon E. White v. Department of Human Resources 

Dennis Ray Alexander v. Department of Human Resources 

Joseph R. & Linda M. Grooms v. Department of Human Resources 

Robert M. Martin v. Department of Human Resources 

Ashton Berry Gatlin v. Department of Human Resources 

Louis Cragg HI v. Department of Human Resources 

Ellen Downing v. Department of Human Resources 

Charles R. Hauley v. Department o( Human Resources 

Michael L. Schadler v. Department of Human Resources 

Owen B. Fisher Jr. v. Department o( Human Resources 

Robin Delmar Goods v. Department of Human Resources 

Terrenee R. McLaughlin v. Department of Human Resources 

Ward F. Miller v. Department of Human Resources 

Joel P. Roth v. Department of Human Resources 

Atward T. Warren v. Department of Human Resources 

Albert Noah Dunlap v. Department of Human Resources 

James E. Davis v. Department of Human Resources 

Roger T. Benoy v. Department of Human Resources 

Spencer P. Johnson v. Department of Human Resources 

James A. Bryant v. Department of Human Resources 

Conrade Dunklin v. Department of Human Resources 

Kenneth J. Balfour v. Department of Human Resources 

Willie A. Harris v. Department o( Human Resources 

Walter T. Townsend Jr. v. Department o( Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Roderick Odell Adams v. Department ol' Human Resources 

Jonathan L. Payne II v. Department of Human Resources 

Charles Scott Wilhoit v. Department of Human Resources 

John Kimmons v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


94 CSE 


1444 


Mann 


03/07/95 


94 CSE 


1445 


Gray 


03/02/95 


94 CSE 


1446 


Morrison 


03/21/95 


94 CSE 


1447 


Reilly 


04/03/95 


94 CSE 


1452 


West 


03/07/95 


94 CSE 


1454 


Nesnow 


04/17/95 


94 CSE 


1455 


Nesnow 


03/07/95 


94 CSE 


1456 


Nesnow 


04/17/95 


94 CSE 


1457 


Nesnow 


04/28/95 


94 CSE 


1459 


Becton 


03/06/95 


94 CSE 


1460 


Becton 


04/07/95 


94 CSE 


1461 


Becton 


04/07/95 


94 CSE 


1462 


Becton 


04/07/95 


94 CSE 


1463 


Becton 


04/07/95 


94 CSE 


1470 


Mann 


03/31/95 


94 CSE 


1471 


Mann 


03/07/95 


94 CSE 


1472 


Mann 


03/07/95 


94 CSE 


1473 


Gray 


03/02/95 


94 CSE 


1474 


Gray 


03/09/95 


94 CSE 


1476 


Morrison 


03/21/95 


94 CSE 


1477 


Morrison 


03/02/95 


94 CSE 


1478 


Morrison 


03/02/95 


94 CSE 


1479 


Morrison 


03/21/95 


94 CSE 


1480 


Reilly 


04/10/95 


94 CSE 


1482 


Reilly 


04/10/95 


94 CSE 


1484 


Nesnow 


04/17/95 


94 CSE 


1486 


Nesnow 


04/17/95 


94 CSE 


1489 


Becton 


03/07/95 


94 CSE 


1491 


Becton 


03/07/95 


94 CSE 


1492 


Becton 


04/07/95 


94 CSE 


1499 


Mann 


03/31/95 


94 CSE 


1500 


Mann 


03/31/95 


94 CSE 


1505 


Gray 


04/07/95 


94 CSE 


1508 


Gray 


03/31/95 


94 CSE 


1511 


Gray 


03/02/95 


94 CSE 


1512 


Gray 


04/07/95 


94 CSE 


1513 


Gray 


04/28/95 


94 CSE 


1533 


Morrison 


03/02/95 


94 CSE 


1534 


Morrison 


04/06/95 


94 CSE 


1537 


Morrison 


04/06/95 


94 CSE 


1538 


Reilly 


03/03/95 


94 CSE 


1539 


Reilly 


03/07/95 


94 CSE 


1541 


Reilly 


03/07/95 


94 CSE 


1542 


Reilly 


04/10/95 


94 CSE 


1543 


West 


03/06/95 


94 CSE 


1553 


Nesnow 


03/30/95 


94 CSE 


1554 


Becton 


03/07/95 


94 CSE 


1555 


Becton 


03/07/95 


94 CSE 


1562 


Becton 


04/07/95 


94 CSE 


1563 


Becton 


04/07/95 


94 CSE 


1569 


Chess 


03/07/95 


94 CSE 


1571 


Chess 


04/19/95 


94 CSE 


1572 


West 


03/14/95 


94 CSE 


1573 


West 


03/31/95 


94 CSE 


1577 


Reilly 


04/10/95 


94 CSE 


1578 


Reilly 


04/10/95 


94 CSE 


1579 


Reilly 


03/03/95 


94 CSE 


1580 


Reilly 


04/10/95 


94 CSE 


1582 


Morrison 


04/06/95 


94 CSE 


1583 


Morrison 


04/06/95 


94 CSE 


1584 


Morrison 


03/07/95 


94 CSE 


1586 


Morrison 


04/06/95 


94 CSE 


1587 


Gray 


04/28/95 


94 CSE 


1590 


Gray 


03/31/95 


94 CSE 


1591 


Gray 


04/07/95 


94 CSE 


1592 


Morrison 


04/06/95 


94 CSE 


1594 


Reilly 


04/21/95 


94 CSE 


1596 


Nesnow 


04/17/95 



PUBLISHED DECISION 
REGISTER CITATION 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



284 



CONTESTED CASE DECISIONS 



AGENCY 

Randolph J. Nunn v. Department of Human Re-sources 
David Lester Gordon v. Department of Human Resources 
Anthony Harrison v, Department of Human Resources 
Michael D. Tyree v. Department of Human Resources 
Edward Fisher v, Department of Human Resources 
Bernard Cooper v. Department of Human Resources 
William Gray v. Department of Human Resources 
Jimmy R. Jackson v. Department of Human Resources 
Mark A. Jones v. Department of Human Resources 
Ondino Damota Freitas v. Department of Human Resources 
Tony Monzell Perry v. Department of Human Resources 
James B. Stokes Jr. v. Department of Human Resources 
Nelson Bennett v. Department of Human Resources 
Eric L. McDonald v. Department of Human Resources 
Kenny R- Bradshaw v. Department oi Human Resources 
Eddie Harris Jr. v. Department of Human Resources 
Robert Larry Martin v. Department of Human Resources 
Joseph O. Evans v. Department of Human Resources 
Donald E. Kirby v. Department of Human Resources 
Paul R. Ross v. Department of Human Resources 
Bobby Dain Massey v. Department of Human Resources 
Carol Jeanne Deese v. Department of Human Resources 
Joyce Ann Wilkinson v. Department of Human Resources 

INSURANCE 

Billv Gene Campbell v. Department of Insurance 

Jl SIR I 

Alarm Systems Licensing Board 

Patrick P. Sassman v. Alarm Systems Licensing Board 

Private Protective Services Board 

Lewis Austin Saintsing v. Private Protective Services Board 
Marcus T. Williams v. Private Protective Services Board 
Melvin Ray Cooper v. Private Protective Services Board 
Donnell E. Morrow, Jr. v. Private Protective Services Board 

Sheriffs Education and Training Standards Division 

Constance F. Laurence v. Sheriffs Ed. &. Training Stds. Comm. 

LABOR 

Occupational Safety & Health Division 

Lenoir County Public Schools v. Department of Labor, OSHA 

Wage and Hour Division 

R.J. Scott, Pres. Pirate Enterprises, inc. v. Labor, Wage &. Hour Div. 

PUBLIC INSTRUCTION 

Glenn D, on behalf of Glenn II. and Glenn II, Individually v. Charlotte- 
Mecklenburg County Schools 
William Hewett v. State Board of Education 
Deborah R. Crouse v. State Board of Education 
Bobby G. Little v. Department of Public Instruction 

STATE PERSONNEL 

Caswell County Health Department 

Julie R. Johnson v. Caswell County Health Department 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


94 CSE 


1608 


Mann 


03/21/95 


94 CSE 


1609 


Mann 


03/13/95 


94 CSE 


1615 


Beaton 


04/07/95 


94 CSE 


1619 


Becton 


04/07/95 


94 CSE 


1621 


Beaton 


04/07/95 


94 CSE 


1623 


Nesnow 


04/17/95 


94 CSE 


1645 


Becton 


04/25/95 


94 CSE 


1648 


Gray 


03/09/95 


94 CSE 


1649 


Morrison 


03/07/95 


94 CSE 


1650 


Reilly 


03/07/95 


94 CSE 


1651 


West 


04/07/95 


94 CSE 


1653 


Becton 


04/07/95 


94 CSE 


1656 


Gray 


03/02/95 


94 CSE 


1657 


Morrison 


04/06/95 


94 CSE 


1700 


Reilly 


04/10/95 


94 CSE 


1702 


Becton 


04/07/95 


94 CSE 


1750 


Chess 


03/21/95 


94 CSE 


1766 


Chess 


03/21/95 


94 CSE 


1767 


Reilly 


03/03/95 


94 CSE 


1778 


West 


03/06/95 


94 CSE 


1798 


Gray 


04/27/95 


94 CSE 


1814 


Morrison 


04/27/95 


95 CSE 0071 


Becton 


04'04'95 



PUBLISHED DECISION 
REGISTER CITATION 



95 INS 0143 



94 DOJ 1S25 



95 DOJ 0076 



°5 DOL 0218 



94 DOL 1524 



Rally 



Reilly 



94 DOJ 


1000 


Chess 


94 DOJ 


1064 


Chess 


94 DOJ 


1635 


Reilly 


94 DOJ 


1823 


Reilly 



Morrison 



Nes 



West 



93 EDC 0549 


Chess 


94 EDC 0533 


Grav 


95 EDC 0003 


Chess 


95 EDC 0168 


Phipps 



04/20/95 



03/09/95 



03/03/95 
02/24/95 
03/09/95 
03/09/95 



04/06 '95 



05'01/95 



03'23'95 



03/16/95 

03/31/95 
04/10/95 

03/20/95 



( 



10:2 NCR 179 



< 



94 OSP 0865 



Reilly 



33 15 95 



285 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CONTESTED CASE DECISIONS 



> 



> 



AGENCY 

Department of Correction 

Nancy Gilchrist v. Department of Correction 
Thomas Wayne Smathers v. Department of Correction 
George J. McCIease, Jr. v. Department of Correction 
Ruth Kearney v. Department of Correction 

Office of the District Attorney 

Shannon Caudill v. Office of the District Attorney for Judicial 
District 17-B, and Administrative Office of the Courts 

FayetteviUe State University 

George Benstead v. FayetteviUe State University 

Forsyth Stokes Mental Health Center 

Michael Howell v. Forsyth Stokes Mental Health Center 

Department of Human Resources 

Rebecca Johnson v. Human Resources, Special Care Center 

Cherry Hospital 
William H. Cooke v. DHR, Cherry Hospital 

Iredell County Department of Social Services 

Vernon E. Grosse v. Iredell County Department of Social Services 
Bonnie N. Bellamy v. Iredell County Department of Social Services 



CASE 

NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



94 OSP 0121 


West 


03/09/95 


94 OSP 0590 


West 


03/23/95 


94 OSP 0644 


Gray 


04/19/95 


94 OSP 1807 


Becton 


03/13/95 



95 OSP 0188 



94 OSP 1597 



94 OSP 0499 



95 OSP 0138 



93 OSP 1547 



94 OSP 0282 
94 OSP 0739 



Nesnow 



Nesnow 



Chess 



West 



Gray 



Becton 
Chess 



Lee-Harnett Area Mental Health, Developmental Disabilities, and Substance Abuse Authority 



Julie Dyer v. Lee-Harnett Area MH/DD/SA Authority 

North Carolina State University 

David L. Bauer v. North Carolina State University 
Billy Ray Kelly v. NCSU Physical Plant 

Orange-Person-Chatham Mental Health 

Patricia A. Harris v. Orange-Person-Chatham Mental Health 

Department of Transportation 

Michael E. Kornegay v. Department of Transportation 

UNC Hospitals 

David Patrick Malone v. Univ. of NC Hospital at Chapel Hill 

Wake County 

Mark Morgan v. Wake County 



94 OSP 0750 



95 OSP 0044 
95 OSP 0130 



95 OSP 0162 



93 OSP 1700 



94 OSP 0771 



94 OSP 0937 



Gray 



Morrison 
West 



West 



Gray 



Becton 



Nesnow 



03/20/95 



04/04/95 



03/24/95 



03/31/95 



03/16/95 



03/09/95 
03/01/95 



03/20/95 



04/25/95 
03/22/95 



04/11/95 



03/24/95 



03/14/95 



04/28/95 



10:01 NCR 48 



10:4 NCR 287 



> 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



286 



COSTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMTMSTRATTVE HEARINGS 

94 OSP 0937 



( 



MARK MORGAN, 

Petitioner 



WAKE COUNTY, 

Respondent. 



RECOMMENDED DECISION 



STATEMENT OF THE CASE 

The above-captioned matter was heard before Administrative Law Judge Dolores O. Nesnow, on March 6, 1995. 
in Raleigh. North Carolina. 

APPEARANCES 



Petitioner: Mark Morgan. Petitioner 

Pro se. 

Respondent: Margaret R Martin, Esq. 

Melissa Tripp. Esq. 
Assistant Wake County Attorneys 
Attorneys for Respondent. 

ISSUE 

Did the Respondent err in Reducing-in-Force ("RIFing") Petitioner? 

WITNESSES 



For Petitioner: 
For Respondent: 



Mark Morgan - Petitioner 

Carol Lee - Wake County Personnel Dir. 
Steve Cline - Wake County Health 

Director for Chronic & Communicable Diseases 
Leah Devlin - Wake County Health Dir. 

Based upon careful consideration of the testimony and evidence presented at the hearing, and the documents and 
exhibits received into evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1. Petitioner was a Public Health Dentist I in the Dental Health Program of Wake County Department of 
Health and had been so employed for seven years. 

2. Petitioner was a permanent State employee. 

3. The Dental Health Program is divided into three sections; Dental Health Promotion, Pediatric Clinical 
Program. Adult Clinical Program. 

4. Petitioner worked in the Pediatric Clinical Program and was assigned, as a Clinical Dentist, to the dental 
van which primarily circulated among elementary schools serving the indigent population. 



\ 



287 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CONTESTED CASE DECISIONS 



5. The dental van operation was limited to school hours. Although attempts had been made to schedule dental 
visits before school and during the after-school hours, those attempts were unsuccessful because the population being served 
rode the school bus and could not arrive early or leave late. 

6. After the dental van completed a day at the elementary schools. Petitioner would return to the Department 
of Health where he would complete the day working in the dental clinic. 

7. In the Spring of 1994, the Wake County Department of Health was informed that the Wake County 
Commissioners had decided that the budget of the Department of Health would be reduced by approximately 1.3 million 
dollars for fiscal year 94/95. 

8. The Department of Health subsequently made reductions in its budget by cutting services in the areas of 
Administration, Environmental Health, Chronic and Communicable Disease, Maternal and Child Health, and the Dental 
Health Program. 

9. The Respondent determined that since the Adult Dental Treatment Program was separately funded through 
Wake County Medical Center, any reductions in that area would not meet the goal of reducing its budget. 

10. Respondent also determined that forty-one thousand dollars ($41,000) could be saved by eliminating the 
dental van and RIFing Petitioner's Public Health Dentist I position. 

1 1. Prior to August 1994, the Health Director was Leah Devlin, the Deputy Director was Steve Cline, and the 
Director of Dental Health was Joanna Irvin. 

12. On June 1, 1994, Petitioner received a memorandum from Steve Cline and Joanna Irvin informing him that 
in order to meet the required reductions, the Dental Van Program would be eliminated. That memo further informed him 
that effective August 31, 1994, his position was being RIF'd. 

13. The Dental Health Program employed three full-time Clinical Dentists: 

- Petitioner (Dentist I) 

- Dr. Joanna Irvin (Dentist III, Director of Dental Health Program) 

- Dr. Sam Rudd (Dentist II, Director of Adult Clinical Program) 

14. Dr. Rudd was hired in February of 1994 and, at the time of the RJF, was a probationary employee. 

15. At the time Dr. Rudd was hired, he was engaged to be married to Wanda Bass, a hygienist in the Dental 
Health Section. They subsequently married in July of 1994. 

16. Dr. Cline, the Deputy Director, testified, and it is found as fact, that employees of the Health Department 
are probationary up to one year. He testified that in his experience he had not known an employee who remained on 
probationary status for less than one full year. 

17. Petitioner had, on several occasions, acted as the Clinical Adult Dentist, filling the position held by Dr. 
Rudd whenever that position was empty. 

18. Petitioner had not applied for Dr. Rudd's position because his preference was the treatment of children. 

19. Petitioner testified that since the Dental Van Program was limited to school days, a one year work schedule 
review showed that he had worked one-third of his time in the dental van and two-thirds of his time in the clinic. 

20. Petitioner further testified that his position as a Dentist I was as a children's dentist but that position had 
never been identified solely with the dental van. 

21. Respondent's RJF Policy provides for appeals subsequent to a RIF. Petitioner followed the steps of appeal. 



10:4 NORTH CAROLINA REGISTER May 15, 1995 288 



CONTESTED CASE DECISIONS 



22. On August 15, 1994, Petitioner received a letter from Richard Y. Stevens, the County Manager. That letter 
informed Petitioner that Mr. Stevens was upholding the determination to RIF the Petitioner. The letter further stated the 
following: 

"Because you are an employee of the Wake County Department of Health you are subject 
to the State Personnel Act. According to Chapter 8- C.2 of the Personnel Administration 
Manual, it is your right to file an appeal with the Office of Administrative Hearings now 
that you have exhausted Wake County's internal process. You would need to make this 
appeal within thirty (30) days. " 

23. Petitioner filed a timely Petition for a Contested Case with the Office of Administrative Hearings. 

24. N.C. Gen. Stat. 126-1 1(a) provides that a county may adopt its own personnel policy if it submits that 
policy to the State Personnel Commission and if a determination is made that the policy is substantially equivalent to the State 
policy. 

25. Respondent testified, and it is found as fact, that Wake County submitted its Reduction-in-Force Policy to 
State Personnel and a determination was made that the policy was substantially equivalent to the State Personnel RIF 
Regulations. 

26. The Wake County RIF Policy (Policy) provides the following: 

The County Manager will identify the area of layoff in which a Reduction-in-Force 
(RIP 7 ) will occur. The area of layoff may include all or any part of county government; 
a department, a division, or any organizational or program sub-unit of a department or 
division. The RIF may further be defined by classification within the designated area of 
layoff. 

27. The Policy further provides that in order for there to be an equitable basis for determining the order of 
retention, all affected employees in the "area of layoff" are to be evaluated against one another to determine their retention 
standing. 

28. The Policy further states the following: 

All non-status employees (i.e. emergency, temporary, limited term, etc.), including those 
who have not completed their probationary period, shall be separated first from county 
employment. 

29. The State Personnel Rules which apply to non-county State employees, at 25 NCAC 11.2005(3), provide 
that no permanent employee shall be separated while there are.... probationary employees serving in the same or related class 
unless the permanent employee is not willing to transfer to the position held by the non-permanent employee or the permanent 
employee does not have the knowledge or skill to perform the duties of the position of the non-permanent employee. 

30. The Respondent presented evidence to show that once it had determined that the area of layoff was the 
dental van, there was only one Public Health Dentist position assigned to that program. The Respondent asserts that it was 
not required to proceed with a retention analysis since there was only one employee in the "area of layoff. " 

3 1 . Petitioner testified that he is currently employed and does not seek to be reinstated to his position with Wake 
County. 

32. Petitioner testified that he seeks monetary compensation for one month of unemployment, the costs of one 
month's dental health insurance coverage, dental liability insurance, subsidy to his 40 IK, and medical insurance. Petitioner 
also seeks one thousand dollars ($1,000) in employment search expenses and one hundred and ten dollars ($1 10.00) in legal 
fees. 

Based on the above Findings of Fact, the undersigned makes the following: 



289 NORTH CAROLINA REGISTER May 15, 1995 10:4 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

1. The Wake County Department of Health was Informed that a reduction of 1.3 million dollars must be made 
in their budget. 

No "area of layoff" was identified by the County Manager but the administration of the Department of Health 
determined that a forty-one thousand dollar ($41,000) cut would be made to the Dental Health Program. Although the Policy 
contemplates that the County Manager would define the "area of layoff," the administration identified the "area of layoff" 
as the dental van. 

Given arguendo that the Department of Health appropriately designated the Dental Program and also appropriately 
designated the dental van, the Department then made a critical decision. The Department determined that the policy 
provisions relating to retention of employee was not applicable since only one Public Health Dentist (a classification) worked 
in the dental van. 

The Wake RIF Policy, however, provides that an equitable basis for determining the order of layoff is to evaluate 
the employees against one another. The Policy also provides that all non-status employees including those who have not 
completed their probationary period shall be separated first from county employment. 

Since the Wake RIF Policy must be substantially equivalent to the State Policy, the State regulations have been 
examined for clarification. Those regulations clearly provide that no permanent State employee will be RIF'd while there 
is a probationary employee in the same class . 

The State RIF Policy further provides that the position of a temporary employee in the affected class shall be offered 
to the permanent State employee in the same class if that employee has the ability to do the job. 

The Wake RIF Policy makes no provision for offering a permanent employee the vacancy of a probationary 
employee who has been RIF'd. However, the Wake RIF Policy clearly provides that probationary employees shall be 
separated first. 

In the instant case, there were three employees in the classification title of Public Health Dentist. Petitioner, Joanna 
Irvin, and Samuel Rudd, a probationary employee. 

Although Dr. Rudd's program was partially funded through Wake Medical Center, that funding would not have been 
lost if Petitioner's position was RIF'd and Petitioner were offered the position of Dr. Rudd, a probationary employee. 

Although Dr. Rudd was a Public Health Dentist D and Petitioner was a Public Health Dentist I, Petitioner had filled 
Dr. Rudd's position on various occasions. More importantly, Dr. Rudd was a probationary employee. While the Wake RIF 
Policy does not overtly provide for permanent State employees to be offered positions of probationary employees, it does 
clearly require that a probationary employee be RIF'd before a permanent State employee. 

2. Based upon the above, it is concluded that the RIF conducted by the Respondent was improper in that a 
probationary employee in the same classification was retained while a permanent State employee was RIF'd. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

That Respondent, in lieu of reinstatement, give the Petitioner the remedies requested in Finding of Fact Number 
32. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36(b). 



10:4 NORTH CAROLINA REGISTER May 15, 1995 290 



CONTESTED CASE DECISIONS 



NOTICE 

.... 

The agency making the final decision in this contested case is required to give each party an opportunity to file 

exceptions to this recommended decision and to present written arguments to those in the agency who will make the final m 

decision. G.S. 150B-36(a). ™ 

The agency is required by G.S. 150B-36fb) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Office of State Personnel. 

This the 27th day of April, 1995. 



Dolores O. Nesnow 
Administrative Law Judge 



291 NORTH CAROLINA REGISTER May IS, 1995 10:4 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles 
and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in 
the North Carolina executive branch of government has been assigned a title number. Titles are firth er 
broken down into chapters which shall be numerical in order. The other two, subchapters and sections 
are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Exammers 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Exammers 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Exammers 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Exammers 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursmg 


36 


22 


Admmistrative Procedures 


Nursmg Home Admmistrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Admmistrative Hearings 


Osteopathic Exammation & Reg. (Repealed) 


44 


27 


NC State Bar 


Pharmacy 


46 






Physical Therapy Exammers 


48 






Piumbmg, Heatmg & Fire Sprinkler Contractors 


50 






Podiatry Exammers 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Exammers 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



292 



CUMULATIVE INDEX 



Agency/Rule Citation 


Proposed in 
Register 


Proposed 

Effective 

Date 


Fiscal Note 


Effective 
Date 


Other Information 


State 


Local 



( 



ACUPUNCTURE LICENSING BOARD 



21 NCAC 01 


.0101 




10:02 NCR 


150 


07/01/95 








.0401 - 


.0402 


10:02 NCR 


150 


07/01/95 






AGRICULTURE 
















2 NCAC 34 


.0904 




10:04 NCR 


228 


08/01/95 






CERTIFIED PUBLIC ACCOUNTANT EXAMINERS 








21 NCAC 08F 


.0105 




10:04 NCR 


255 


08/01/95 








.0113 




10:04 NCR 


255 


08/01/95 






08G 


.0401 




10:04 NCR 


255 


08/01/95 






08J 


.0005 




10:04 NCR 


255 


08/01/95 








.0008 




10:04 NCR 


255 


08/01/95 






08M 


.0102 




10:04 NCR 


255 


08/01/95 








.0104 




10:04 NCR 


255 


08/01/95 








.0306 




10:04 NCR 


255 


08/01/95 








.0401 




10:04 NCR 


255 


08/01/95 






08N 


.0203 




10:04 NCR 


255 


08/01/95 








.0302 




10:04 NCR 


255 


08/01/95 








.0307 




10:04 NCR 


255 


08/01/95 






CHIROPRACTIC EXAMINERS 












21 NCAC 10 


.0203 




10:04 NCR 


261 


08/01/95 






COMMUNITY COLLEGES 












23 NCAC 02C 


.0108 




10:03 NCR 


20S 


09/01/95 








.0211 




10:03 NCR 


208 


09/01/95 








.0306 




10:03 NCR 


208 


09/01/95 






CORRECTION 
















5 NCAC 05 


.0001 




10:01 NCR 


12 


07/01/95 






CULTURAL RESOURCES 












7 NCAC 02F 


.0002 




10:01 NCR 


12 


07/01/95 






ENVIRONMENT 


HEALTH, AND NATURAL RESOURCES 






15A NCAC 02B 


.0101 
.0104 
.0202 
.0211 
.0301 




10:01 NCR 
10:01 NCR 
10:01 NCR 
10:01 NCR 
10:01 NCR 


13 
13 

13 
13 
13 










.0304 




10:04 NCR 


246 


01/01/96 








.0316 




10:04 NCR 


246 


01/01/96 






02D 


.0520 




10:01 NCR 


13 


07/01/95 


X 


X 




.0531 




10:01 NCR 


13 


07/01/95 


X 


X 




.0902 




10:01 NCR 


13 


07/01/95 


X 


X 




.0909 




10:01 NCR 


13 


07/01/95 


X 


X 




.0952 




10:01 NCR 


13 


07/01/95 


X 


X 




.1402 




10:01 NCR 


13 


07/01/95 


X 


X 




.1406 




10:01 NCR 


13 


07/01/95 


X 


X 




.1409 




10:01 NCR 


13 


07/01/95 


X 


X 




.1701 - 


.1702 


10:01 NCR 


13 


07/01/95 


X 


X 




.1801 - 


.1803 


10:01 NCR 


13 


07/01/95 


X 


X 


NPDES Permit 






10:02 NCR 


56 








04B 


.0028 




10:02 NCR 


149 


07/01/95 






07H 


.0208 




10:03 NCR 


197 


12/01/95 








.2201 - 


~>?fP 


10:03 NCR 


204 


12/01/95 








.2203 




10:03 NCR 


204 


12/01/95 


X 






.2204 - 


.2205 


10:03 NCR 


:o4 


12/01/95 






10B 


.0202 - 


.0203 


10:01 NCR 


26 


07/01/95 








.0202 




10:04 NCR 


249 


08/01/95 







Correction to Notice 
Correction to Notice 
Correction to Notice 
Correction to Notice 
Correction to Notice 



293 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CUMULATIVE INDEX 



> 



Agency/Rule Citation 


Proposed in 
Register 


Proposed 










Fiscal Note 


Effective 




Date 


State 


Local 


Date 





> 



> 





.0214 


10:01 NCR 


26 


07/01/95 


10D 


.0002 - .0003 


10:01 NCR 


26 


07/01/95 




.0003 


10:04 NCR 


250 


08/01/95 


10F 


.0317 


10:01 NCR 


26 


07/01/95 


Wildlife Proclamation/Striped Bass 


10:02 NCR 


57 


04/10/95 






10:03 NCR 


195 


04/15/95 


FINAL DECISION LETTERS 








Voting Rights Act 




10:01 NCR 
10:03 NCR 


02 
194 




GOVERNOR'S EXECUTIVE ORDERS 






Number 72 




10:01 NCR 


01 




Number 73 




10:02 NCR 


54 




Number 74 




10:02 NCR 


54 




Number 75 




10:03 NCR 


191 




Number 76 




10:03 NCR 


191 




HUMAN RESOURCES 








10 NCAC 03H 


.0108 - .0109 


10:02 NCR 


58 


09/01/95 




.0206 - .0220 


10:02 NCR 


58 


09/01/95 




.0306 - .0318 


10:02 NCR 


58 


09/01/95 




.0407 - .0409 


10:02 NCR 


58 


09/01/95 




.0505 - .0507 


10:02 NCR 


58 


09/01/95 




.0510- .0517 


10:02 NCR 


58 


09/01/95 




.0605 - .0609 


10:02 NCR 


58 


09/01/95 




.0705 - .0712 


10:02 NCR 


58 


09/01/95 




.0810- .0812 


10:02 NCR 


58 


09/01/95 




.0903 - .0911 


10:02 NCR 


58 


09/01/95 




1003 - .1008 


10:02 NCR 


58 


09/01/95 




.1105 - .1109 


10:02 NCR 


58 


09/01/95 




.1130- .1136 


10:02 NCR 


58 


09/01/95 




.1150- .1163 


10:02 NCR 


58 


09/01/95 




.1204- .1208 


10:02 NCR 


58 


09/01/95 




.1210 


10:02 NCR 


58 


09/01/95 




.1306 - .1308 


10:02 NCR 


58 


09/01/95 




.1405 - .1406 


10:02 NCR 


58 


09/01/95 




.1408 - .1410 


10:02 NCR 


58 


09/01/95 




.1501 - .1503 


10:02 NCR 


58 


09/01/95 




.1612- .1613 


10:02 NCR 


58 


09/01/95 




.1703 - .1704 


10:02 NCR 


58 


09/01/95 




.1804- .1807 


10:02 NCR 


58 


09/01/95 




.2001 


10:02 NCR 


58 


09/01/95 




.2101 - .2110 


10:02 NCR 


58 


09/01/95 




.2201 - .2212 


10:02 NCR 


58 


09/01/95 




.2301 - .2308 


10:02 NCR 


58 


09/01/95 




.2401 - .2402 


10:02 NCR 


58 


09/01/95 




.2501 - .2506 


10:02 NCR 


58 


09/01/95 




.2601 - .2607 


10:02 NCR 


58 


09/01/95 




.2701 


10:02 NCR 


58 


09/01/95 




.2801 - .2802 


10:02 NCR 


58 


09/01/95 




.2901 - .2902 


10:02 NCR 


58 


09/01/95 




.3001 - .3005 


10:02 NCR 


58 


09/01/95 




.3011 - .3016 


10:02 NCR 


58 


09/01/95 




.3021 - .3032 


10:02 NCR 


58 


09/01/95 




.3101 - .3104 


10:02 NCR 


58 


09/01/95 




.3201 - .3202 


10:02 NCR 


58 


09/01/95 




.3301 - .3302 


10:02 NCR 


58 


09/01/95 




.3401 - .3404 


10:02 NCR 


58 


09/01/95 


18J 


.0803 


10:02 NCR 


118 


07/01/95 


26B 


.0124 


10:02 NCR 


118 


07/01/95 


26H 


.0302 


10:04 NCR 


228 


08/01/95 




.0304 - .0305 


10:04 NCR 


228 


08/01/95 



03/06/95 
03/15/95 
03/27/95 
03/30/95 
04/03/95 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



294 



CUMULATIVE INDEX 



Agency/Rule Citation 


Proposed in 
Register 


Proposed 

Effective 

Date 


Fiscal Note 


Effective 
Date 


Other Information 


State 


Local 







.0308 - 


.0309 


10:04 NCR 


228 


08/01/95 




26H 


.0213 




10:02 NCR 


118 


07/01/95 




41F 


.0706 




10:03 NCR 


196 


08/01/95 






.0812 




10:03 NCR 


196 


08/01/95 


INSURANCE 












1 1 NCAC 


06A 


.0812 




10:04 NCR 


246 


08/01/95 


JUSTICE 














12 NCAC 


09A 


.0204 




10:02 NCR 


122 


08/01/95 




09B 


.0113 




10:02 NCR 


122 


08/01/95 






.0201 - 


.0202 


10:02 NCR 


122 


08/01/95 






.0205 - 


.0206 


10:02 NCR 


122 


08/01/95 






.0210 




10:02 NCR 


1 22 


08/01/95 






.0212 - 


.0214 


10:02 NCR 


122 


08/01/95 






.0226 - 


.0228 


10:02 NCR 


122 


08/01/95 






.0232 - 


.0233 


10:02 NCR 


1 22 


08/01/95 




09C 


.0401 




10:02 NCR 


122 


08/01/95 






.0601 




10:02 NCR 


1 22 


08/01/95 




09D 


.0102 




10:02 NCR 


122 


08/01/95 






.0104 - 


.0106 


10:02 NCR 


122 


08/01/95 


LABOR 














13 NCAC 








10:01 NCR 
10:01 NCR 
10:02 NCR 
10:02 NCR 
10:02 NCR 
10:02 NCR 
10:03 NCR 
10:03 NCR 


10 

12 
149 
[49 
149 
149 
196 
197 


01/01/96 
01/01/96 
10/01/95 
01/01/96 
01/01/96 
02/01/96 
01/01/96 
01/01/96 




12 


.0101 




10:02 NCR 


142 


08/01/95 






.0303 - 


.0315 


10:02 NCR 


142 


08/01/95 






.0501 - 


.0502 


10:02 NCR 


142 


08/01/95 






.0803 - 


.0808 


10:02 NCR 


142 


08/01/95 


LIST OF RULES CODIFIED 
















10:02 NCR 


16' 












10:04 NCR 


2^2 




MEDICAL EXAMINERS 








21 NCAC 


32H 


.0102 




10:02 NCR 


151 


07/01/96 






.0201 




10:02 NCR 


151 


07/01/96 






.0203 




10:02 NCR 


151 


07/01/96 






.0408 




10:02 NCR 


151 


07/01/96 






.0506 




10:02 NCR 


151 


07/01/96 






0601 




10:02 NCR 


151 


07/01/95 






.0602 




10:02 NCR 


151 


07/01/96 






.0801 




10:02 NCR 


151 


07/01/96 






.1001 




10:02 NCR 


151 


07/01/96 




321 


.0003 - 


.0004 


10:02 NCR 


151 


07/01/95 


NURSING HOME ADMINISTRATORS 






21 NCAC 37 


.0101 




10:04 NCR 


202 


08/01/95 






.0302 




10:03 NCR 


206 


08/01/95 






.0404 




10:03 NCR 


206 


08/01/95 






.0502 




10:03 NCR 


206 


08/01/95 






.0603 




10:03 NCR 


206 


08/01/95 






.0904 




10:04 NCR 


262 


08/01/95 






.0912 




10:03 NCR 


206 


08/01/95 






.0914 




10:03 NCR 


206 


08/01/95 



( 



Notice 
Notice 
Notice 
Notice 
Notice 
Notice 
Notice 
Notice 



on Subject 
on Subject 
on Subject 
on Subject 
on Subject 
on Subject 
on Subject 
on Subject 



Matter 
Matter 
Matter 
Matter 
Matter 
Matter 
Matter 
Matter 



Rules Filed 03/95 
Rules Filed 04/95 



295 



NORTH CAROLINA REGISTER 



May 15, 1995 



10:4 



CUMULATIVE INDEX 



> 



Agency/Rule Citation 


Proposed in 
Register 


Proposed 

Effective 

Date 


Fiscal Note 


Effective 
Date 


Other Information 


State 


Local 



PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS 

21 NCAC 50 .0402 10:01 NCR 39 09/01/95 

.0505 10:01 NCR 39 09/01/95 



PROFESSIONAL COUNSELORS 



> 



21 NCAC 53 


.0204 - 


.0211 


10:01 NCR 


40 


07/01/95 




.0301 




10:01 NCR 


40 


07/01/95 




.0305 - 


.0310 


10:01 NCR 


40 


07/01/95 




.0403 - 


.0405 


10:01 NCR 


40 


07/01/95 




.0601 - 


.0604 


10:01 NCR 


40 


07/01/95 


REAL ESTATE COMMISSION 








21 NCAC 58 A 


.0110 




10:02 NCR 


157 


07/01/95 




.0403 




10:04 NCR 


263 


08/01/95 




.0503 




10:04 NCR 


263 


08/01/95 




.0504 - 


.0506 


10:02 NCR 


157 


07/01/95 




.0505 




10:04 NCR 


263 


08/01/95 




.1703 




10:02 NCR 


157 


07/01/95 




.1707- 


.1708 


10:02 NCR 


157 


07/01/95 




.1710- 


.1711 


10:02 NCR 


157 


07/01/95 


58E 


.0103 




10:02 NCR 


157 


07/01/95 




.0203 - 


.0204 


10:02 NCR 


157 


07/01/95 




.0303 - 


.0305 


10:02 NCR 


157 


07/01/95 




.0406- 


.0407 


10:02 NCR 


157 


07/01/95 




.0506 




10:02 NCR 


157 


07/01/95 




.0515 




10:02 NCR 


157 


07/01/95 


REFRIGERATION EXAMINERS 








21 NCAC 60 


.0102 




10:04 NCR 


264 


08/01/95 




.0204 




10:04 NCR 


264 


08/01/95 




.0314 




10:04 NCR 


264 


08/01/95 




.1102 




10:04 NCR 


264 


08/01/95 


REVENUE 












Tax Review Board 






10:01 NCR 


03 




STATE PERSONNEL 










25 NCAC 01C 


.0207 




10:04 NCR 


264 


08/01/95 




.0402 - 


.0408 


10:04 NCR 


264 


08/01/95 


01D 


.0201 




10:04 NCR 


264 


08/01/95 




.0205 




10:04 NCR 


264 


08/01/95 




.0207 




10:04 NCR 


264 


08/01/95 




.0211 




10:04 NCR 


264 


08/01/95 




.0808 




10:04 NCR 


264 


08/01/95 




.1001 




10:04 NCR 


264 


08/01/95 




.1009 




10:04 NCR 


264 


08/01/95 




.1201 




10:04 NCR 


264 


08/01/95 




.1204 




10:04 NCR 


264 


08/01/95 




.1401 




10:04 NCR 


264 


08/01/95 




.1801 - 


.1802 


10:04 NCR 


264 


08/01/95 




.2001 




10:04 NCR 


264 


08/01/95 


01E 


.0804 




10:04 NCR 


264 


08/01/95 


01K 


.0312 




10:04 NCR 


264 


08/01/95 


TRANSPORTATION 










19A NCAC 02D 


.0801 




10:04 NCR 


254 


09/01/95 



> 



10:4 



NORTH CAROLINA REGISTER 



May 15, 1995 



296 



< 



BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1995 



> 



DESCRIPTION 







ONE-TIME 


ANNUAL 






PURCHASE 


SUBSCRIPTION 




CODE 


PRICE 


PRICE 




201 00 00 


$63.00 


$90.00 




201 10 05 


$21.00 


$30.00 




201 10 33 


$17.50 


$25.00 




202 00 00 


$98.00 


$140.00 




202 1 5 09 


$28.00 


$40.00 




202 1 6 34 


$21.00 


$30.00 




202 1 6 43 


$21.00 


$30.00 




202 1 5 48 


$21.00 


$30.00 




202 15 52 


$21.00 


$30.00 




203 00 00 


$7.00 


$10.00 




204 00 00 


$87.50 


$125.00 




204 1 5 02 


$12.00 


$40.00 




204 1 5 03 


$24.50 


$35.00 




204 1 5 06 


$14.00 


$20.00 




204 1 5 09 


$14.00 


$20.00 




204 15 10 


$14.00 


$20.00 




204 15 16 


$24.50 


$35.00 




205 00 00 


$56.00 


$80.00 




205 15 02 


$24.50 


$35.00 




206 00 00 


$21.00 


$30.00 




207 00 00 


$21.00 


$30.00 




208 00 00 


$7.00 


$10.00 


e 


209 00 00 


$31.50 


$45.00 




210 00 00 


$346.50 


$495.00 




210 20 10 


$45.50 


$65.00 




210 20 20 


$31.50 


$45.00 




210 20 30 


$77.00 


$110.00 




210 20 40 


$119.00 


$170.00 




210 20 41 


$31.50 


$45.00 




210 20 42 


$31.50 


$45.00 




210 20 43 


$28.00 


$40.00 




210 20 44 


$17.50 


$25.00 




210 20 45 


$35.00 


$50.00 




211 00 00 


$63.00 


$90.00 




211 1001 


$56.00 


$80.00 




211 10 04 


$24.50 


$35.00 




211 10 05 


$17.50 


$25.00 




211 10 06 


$28.00 


$40.00 




211 10 08 


$21.00 


$30.00 




212 00 00 


$63.00 


$90.00 




212 1007 


$21.00 


$30.00 




212 10 09 


$31.50 


$45.00 




212 10 11 


$17.50 


$25.00 




213 00 00 


$77.00 


$110.00 




213 15 06 


$14.00 


$20.00 




213 20 00 


$31.50 


$45.00 




213 15 12 


$14.00 


$20.00 




213 15 13 


$14.00 


$20.00 




213 15 14 


$14.00 


$20.00 




213 15 15 


$14.00 


$20.00 


rwe 


214 00 00 


$31.50 


$45.00 




214 00 08 


$17.50 


$25.00 




214 00 11 


$14.00 


$20.00 


Full Title 


215 00 00 


$276.50 


$395.00 




215 15 00 


$115.50 


$165.00 




215 15 10 


$49.00 


$70.00 




215 15 20 


$49.00 


$70.00 




215 15 30 


$56.00 


$80.00 




215 15 31 


$35.00 


$50.00 




215 15 32 


$17.50 


$25.00 



TitJe 1 - Dept. of Administration 

Division of Purchase & Contract 
Federal Block Grant Funds 



Full Title 



Title 2 - Dept. of Agriculture - Full Tide 

Food & Drug Protection Division 
Structural Pest Control Committee 
Agncultural Markets 
Plant Industry 
Animal Industry 

Title 3 - Dept. of State Auditor - Full Title 

Title 4 - Dept. of Commerce - Full Title 

Alcoholic Beverage Control Commission 

Banking Commission 

Credit Union Division 

Savings & Loan Division 

Industrial Commission/Workers Compensation 

Savings Institutions Division 



Title 5 - Dept. of Corrections 

Division of Prisons 



Full Title 



I 



I 



Title 6 - Council of State - Full Title 

Title 7 - Dept. of Cultural Resources - Full Title 

Title 8 - State Board of Elections - Full Trde 

Tide 9 - Offices of the Governor & Lt. Governor - Full Tide 

Tide 10 - Dept. of Human Resources - Full Tide 

Licensing of Health Facilities 

Detention Facilities 

Mental Health & Rehabilitation Services 

Social Services 

Children Services/Day Care 

Services for the Aging 

Services for the Blind 

Services for the Deaf & Hard of Hearing 

Employment Opportunities 

Tide 1 1 - Dept. of Insurance - Full Tide 

Insurance 

Consumer Services 

Fire & Rescue Services 

Agent Services 

Engineering & Building Codes 

Tide 12 - Dept. of Justice - Full Tide 

Private Protective Services 

Police & Sheriff's Education & Training Standards 

NC Alarm Systems Licensing Board 

Tide 1 3 - Dept. of Labor - Full Tide 

Mine & Quarry Safety 

General Safety/OSHA 

Wage & Hour Rules 

Boiler & Pressure Vessel Safety 

Apprenticeship & Training 

Elevator & Amusement Device Safety 

Tide 14A - Dept. of Crime Control & Public Safety - Full 

Alcohol Law Enforcement 
Victims Compensation Fund 

Tide 15A - Dept. of Environ., Health, & Nat. Resources 

Environmental Management 

Air Quality 

Water Quality 

Land & Waste Management 

Solid Waste Management 

Underground Storage Tanks 



DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


215 15 40 


$31.50 


$45.00 


215 25 00 


5105.00 


$150.00 


215 25 10 


$42.00 


$60.00 


215 25 20 


$35.00 


$50.00 


215 25 30 


$59.50 


$85.00 


215 25 31 


$17.50 


$25.00 


216 00 00 


$21.00 


$30.00 


216 1006 


$21.00 


$30.00 


217 00 00 


$91.00 


$130.00 


217 15 10 


$31.50 


$45.00 


217 15 20 


$56.00 


$80.00 


217 15 27 


$31.50 


$45.00 


217 15 29 


$21.00 


$30.00 


218 00 00 


$21.00 


$30.00 


218 10 06 


$21.00 


$30.00 


219 00 00 


$63.00 


$90.00 


219 10 02 


$28.00 


$40.00 


219 1003 


$35.00 


$50.00 


220 00 00 


$31.50 


$45.00 


221 00 00 


$143.50 


$205.00 


222 00 00 


$0.00 


$0.00 


223 00 00 


$7.00 


$10.00 


224 00 00 


$7.00 


$10.00 


225 00 00 


$42.00 


$60.00 


226 00 00 


$7.00 


$10.00 


227 00 00 


$42.00 


$60.00 


299 99 98 


$375.00 


$750.00 


266 00 00 


.. 


$750.00 


266 50 00 




$250.00 


288 50 00 


$295.00 


$475.00 


288 80 00 


$40.00 


$75.00 


299 90 00 


$16.00 





Coastal Management 

Environmental Hearth 

Radiation/Nuclear Waste 

Sanitation 

Public Health 

Intoxilizer & Breathalyser 

Title 16 - Dept. of Public Instruction - Full TitJe 

Elementary & Secondary Education 

TitJe 1 7 - Dept. of Revenue - Full Title 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 18 - Secretary of State - Full TitJe 

Securities Division 

TirJe 1 9A - Dept. of Transportation - Full Title 

Division of Highways 
Division of Motor Vehicles 

Title 20 - Dept. of the State Treasurer - Full TitJe 

TitJe 21 - Occupational Licensing Boards - Full TitJe 

TitJe 22 - Administrative Procedures Act - Repealed 

Title 23 - Dept. of Community Colleges - Full TitJe 

TitJe 24 - Independent Agencies - Full TitJe 

TitJe 25 - Office of State Personnel - Full Title 

TitJe 26 - Office of Administrative Hearings - Full Title 

TitJe 27 - North Carolina State Bar - Full TitJe 

North Carolina Administrative Code - Full Code 

(Add $85.00 Shipping and Handling) 

CD-ROM North Carolina Administrative Code 
CD-ROM North Carolina Administrative Code 

(When purchased with the Full Code in Print) 

Master Index 

Master Table of Contents 

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